LESBIAN/GAY LAW NOTES
Lesbian & Gay Law Association of Greater New York
ISSN 8755 9021
April 1995
Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013,
212-431-2156, fax 431-1804; e-mail: asleonard@aol.com
Contributing Editor: Colin Crawford, Instructor, Brooklyn Law School
Contributing Writers: Monica Barrett, Esq., New York; Otis Damslet, Esq., New York; Steven
Kolodny, Esq., New York; Todd V. Lamb, Esq., New York; Michael S. Ryan, Esq., New
York; Dirk Williams, Esq., Boston; Robin Miller, Esq., Seattle; Paul Twarog, Student, New
York; Robert Bourguignon, Student, Brooklyn; Philip Friedman, Student, Brooklyn; Clarice B.
Rabinowitz, Student, Brooklyn; Klayton Fennell, Student, Florida State.
Circulation: Audrey Hartmann, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-
9118.
(C) 1995 by Lesbian & Gay Law Association of Greater New York $30/yr by subscription
(Foreign Rate US$35)
GEORGIA SUPREME COURT REJECTS ATLANTA DOMESTIC PARTNERSHIP
BENEFITS; SUSTAINS PARTNER REGISTRY AND GAY RIGHTS ORDINANCE
The Georgia Supreme Court ruled March 14 that Atlanta's city council exceeded its authority
when it passed an ordinance in August 1993 recognizing domestic partnership as a "family
relationship" and making partners of city employees eligible for insurance benefits. City of
Atlanta v. McKinney, 1995 WL 116312. Three judges on the 7-member court dissented in an
opinion by Justice Sears. However, the court rejected by 6-1 a challenge to the 1986 adoption
of an amendment to the city charter that banned sexual orientation discrimination by the city in
employment, artist selection, festival admission, Civic Center exhibitors, licensed alcohol
beverage establishments, and vehicles for hire, and rejected by 5-2 a challenge to a June 1993
ordinance that established a domestic partnership registry and extended visitation rights in city
jails to domestic partners and their families.
The court's opinion by Justice Fletcher first addressed the registry ordinance. The court held
that the ordinance created "only a registration system and not any legal rights. Under this
construction, the ordinance is valid. First, the city possesses the power to grant visitation rights
to the city jail to registered persons," consistent with its general authority to establish and run
the jail. Thus, under this limited construction, the ordinance did not run afoul of state
constitutional provisions that the court held, in essence, preempt local authority to create new
civil legal relationships. Dissenting from this ruling, Justice Carley argued that the ordinance
did more than establish jail visitation rights, by stating that any entity which requires evidence
of the existence of a partnership shall accept the city's Declaration of Domestic Partnership form
as complete proof and providing that the form would be reasonable proof for qualifying for any
present or future partner benefits from private corporations or public institutions. Carley insisted
that this affects "the private and civil law governing private or civil relationships."
Turning to partner benefits, Justice Fletcher, noting limitations on the city's authority under the
Home Rule Act, found that "cities in this state may not enact ordinances defining family
relationships," which are defined by the general law. The Home Rule Act "specifically grants
cities the authority to provide insurance benefits for a city's `employees, their dependents, and
their survivors.'. . . The issue here is whether the city impermissibly expanded the definition
of dependent to include domestic partners. Although the home rule act does not define the term
`dependent,' other state statutes define a dependent either as a spouse, child, or one who relies
on another for financial support. . . . Domestic partners do not meet any of these statutory
definitions of dependent." Finding that municipal powers must be "strictly construed," the court
concluded that extension of benefits to partners was "ultra vires."
Dissenting, Justice Sears, joined by Justice Hunstein and Chief Justice Hunt, disagreed that the
ordinance "affects existing `private or civil law.'" Arguing that "the municipality has the
`independent governmental power' to provide benefits for `its employees, their dependents, and
their survivors,'" she asserted that the "benefits ordinance simply defines a category of persons
eligible for benefits as dependents by defining `domestic partners' as persons who are `mutually
interdependent' and who `agree to be jointly obligated and responsible for the necessities of life
for each other.' There is no one general law in this state establishing a uniform definition of
`dependent'. . . and the requirements of a domestic partnership certainly indicate that a city
employee's domestic partner must rely, at least in part, on the employee for financial support."
Turning to the anti-discrimination ordinance, the court found this to be within traditional police
powers, and cited decisions in other states upholding municipal rights laws. Addressing the
dissenting argument on preemption, Fletcher observed that the state's civil rights law actually
"expressly permits local governments to pass laws prohibiting discrimination in public
employment." Fletcher rejected Carley's argument that adding sexual orientation was "diluting"
protection for other groups. "Individuals can be subjected to more than one type of irrational
discrimination which the government is at liberty to prohibit. The ordinances do not require any
special treatment of the specified classes; they just forbid differential treatment. Because the
anti-discrimination ordinances extend only to the city's policies governing its employees and
property and to those businesses that state law leaves to the city to regulate, we conclude that
they are reasonable laws related to the city's affairs and local government."
Thus, the issue of partnership benefits goes back to the council. The opinion leaves room for
maneuvering, since its objection to benefits is based on the council's failure to create a
dependency requirement as prerequisite for coverage, and secondarily on the council's assertion
that it was recognizing partnerships as a "family relationship." Since 5 justices supported the
validity of the registry ordinance, it seems possible that a more carefully tailored benefits
ordinance could withstand scrutiny.
The city of Atlanta was represented in the Georgia Supreme Court by the city's attorney office;
one of the attorneys on the case is Robin Shahar, who has her own employment discrimination
lawsuit pending against Georgia Attorney General Michael Bowers. Lambda Legal Defense, the
ACLU Lesbian & Gay Rights Project, and several individual attorneys filed amicus briefs in
support of the ordinances. A.S.L.
LESBIAN/GAY LEGAL NEWS
Military Policy Front and Center as District Court Finds Constitutional Violation; Thorne
Awarded Naval Honors as Discharge Board Ponders; Philips Ordered Discharged
National attention focused on the policy against military service by openly lesbian, gay or
bisexual persons as U.S. District Judge Eugene Nickerson (E.D.N.Y.) conducted a 4-day trial
in Able v. United States, a constitutional challenge brought on behalf of 6 service members by
Lambda Legal Defense & Education Fund and the ACLU Gay & Lesbian Rights Project.
Nickerson concluded that the "don't ask, don't tell" portion of the policy was unconstitutional,
in an opinion issued March 30. He was on a tight deadline, because the 2nd Circuit decided in
January that his preliminary injunction barring discharge of the plaintiffs for "coming out" was
based on an incorrect standard, and the appeals court would allow it to continue in effect only
until March 31.
Shortly before trial, Nickerson issued an opinion (1995 WL 116322, March 6 [not officially
published]), holding that the plaintiffs' standing was limited to challenging 10 U.S.C. sec.
654(b)(2), which authorizes discharge of a military member who "has stated that he or she is
a homosexual or bisexual or words to that effect" unless "the member has demonstrated that he
or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or
intends to engage in homosexual acts." Nickerson concluded that the provisions authorizing the
discharge of members who solicit or actually engage in gay sex, or who attempt to marry
someone of the same sex, were not at issue. Also, adopting a narrow view of personal standing,
he found none of the plaintiffs adequately alleged facts sufficient to create standing for an
"intimate association" claim, so the legal theories left in the case were equal protection and
freedom of speech.
Since the government did not present witnesses, preferring to rest on the legislative record,
media coverage was dominated by the testimony of plaintiffs' expert witnesses, including former
Assistant Secretary of Defense Lawrence J. Korb, Dr. Robert J. MacCoun (co-author of the
famous Rand Corporation report finding the ban insupportable), former Navy psychiatrist Robert
Rankin, Dr. Pepper Schwartz, and retired Major General Vance Coleman. For a detailed
summary, see Thom Weidlich, "Experts Weigh in on `Don't Ask, Don't Tell,'", Nat'l L. J.,
March 27, p. A12. The government's trial strategy was totally unsuccessful, since Nickerson
decided that a high level of scrutiny applied to the policy, and he found plenty of ammunition
in the legislative history with which to skewer the policy.
Most of Nickerson's opinion dealt with the 1st amendment issue. "The first question for the
court is whether the government may under the First Amendment prohibit a member of the
Services from stating that he or she is a homosexual, that is, that he or she has an innate feeling
within that indicates the status of a homosexual." The government argued, in effect, that the
prohibited statement was a declaration that one intended to engage in prohibited behavior, but
Nickerson was not buying this argument, characterizing it as "Orwellian." Observing that
content-based speech regulations are normally "presumed invalid" unless the government can
show a "compelling interest" and that the means chosen of achieving the interest is "the least
restrictive," Nickerson found that in the military context the regulation could only withstand
judicial review if it was "no more than [what is] reasonably necessary to protect [a] substantial
government interest." Nickerson would not credit the government's attempt to argue that its
military needs would not be compromised by allowing gay people to serve unless the gay people
revealed their presence through speech. Indeed, Nickerson concluded that the reasons stated in
the statute (Senator Nunn's spurious "findings" based on the hearing record) were wholly
pretextual because internally consistent and illogical; this was clearly status-based discrimination,
and "Hitler taught the world what could happen when the government began to target people not
for what they had done but because of their status."
Actually, Nickerson concluded, it was clear from the Nunn hearings that the real reason for the
ban was the belief of military officials and legislators that homophobic service members would
provoke chaos if gays "came out." Nickerson deftly analyzed the arguments advanced by the
government in support of this contention, and found that the hearing record provided little
concrete support. Nickerson observed there was testimony from the military leaders that if
Congress required them to let openly gay members serve, they could do so without disruption,
because the rank and file would follow orders. Nickerson found confirmation for this conclusion
in the Rand Corporation report, commissioned by then-Secretary of Defense Cheney, as well as
earlier reports commissioned by the Defense Department.
The opinion on this point is full of acute observations about the pretense and posturing of the
politicians and military brass. Here is one example: "What the court deems extraordinary is the
almost total lack of concern evidence in the Congressional hearings and the Committee reports
as to the impact on unit cohesion of the attempt to enforce secrecy on homosexuals and to enlist
them in the perpetration of a hoax on heterosexuals. Common sense suggests that a policy of
secrecy, indeed what might be called a policy of deception or dishonesty, will call unit cohesion
into question. If there is one thing that is undisputed and seems self-evident, it is that cohesion
depends on mutual trust within the unit. The honor code for servicemembers provides that they
will not lie or cheat, and for good reason. Honesty is a quality that attracts respect. Secrecy
and deception invite suspicion, which in turn erodes trust, the rock on which cohesion is built."
This judge "gets it"!
Turning to equal protection, Nickerson avoided the quagmire of arguments over whether sexual
orientation is a "suspect classification" by treating this as a "fundamental rights" equal protection
case. The fundamental right at stake is freedom of speech; in the military, straights have it and
gays do not. Since a fundamental right is at stake, the same level of scrutiny under 5th
amendment equal protection is to be applied as would be applied under the 1st amendment, and
little more need be said to find a constitutional violation in light of the foregoing analysis.
The government will appeal, as President Clinton's "deal" with Congress requires the
administration to defend the policy. One hopes that if Congressional leaders were to read this
persuasive opinion, they might decide to repeal the offensive provision. But one probably hopes
in vain, in light of the irrational responses to the issue of homosexuality by the political
conservatives who hold most of the leadership positions at present.
The plaintiffs are represented by a team of volunteer lawyers from Sullivan and Cromwell, the
ACLU Lesbian and Gay Rights Project, and the Lambda Legal Defense and Education Fund.
Other Military News:
Lt. Tracy Thorne, whose discharge for being gay is pending before Navy Secretary John Dalton,
was awarded the Navy Achievement Medal in a ceremony at the Naval Air Systems Command.
His commendation was signed by Vice Admiral W.C. Bowes, commander of Naval Air System
Command. Of course, according to military policy, Lt. Thorne lacks aptitude for military
service due to his sexual orientation. One wonders why they gave him a medal. Chicago Tribune
(March 1).
U.S. District Judge William Dwyer ruled in Seattle March 17 that the Navy could discharge
Petty Officer 2nd Class Mark A. Philips, who admitted to a Naval legal officer that he had
engaged in sexual activity with men and would continue to do so. Philips was being questioned
after he told his commanding officer that he was gay. Thus, the discharge came under 10
U.S.C. sec. 654(b)(1), a provision not at issue in Able (see above). Dwyer rejected Philips'
argument that the military policy as applied to him violated his rights of freedom of speech,
equal protection and privacy. While observing that the current policy is "a modest step toward
tolerance," Dwyer expressed reluctance to authorize Philips' discharge, stating that the
regulations "still result, however, in a loss to the nation of soldiers and sailors who serve with
honor. This case is an example." Philips was a machinist's mate on a nuclear submarine. A
Navy panel had recommended that he be given an honorable discharge, despite his admission
of past sexual conduct. Dwyer briefly stayed his ruling to give Philips an opportunity to appeal.
San Francisco Chronicle (March 18).
Is a member of the Armed Services discharged solely for being gay, without evidence of sexual
conduct, entitled to collect unemployment insurance when he or she has difficulty finding a job
after the discharge? Not according to the Virginia Court of Appeals' decision in Evans v.
Virginia Employment Commission, 1995 WL 110099 (March 14) (not officially published).
Troy Evans was honorably discharged from the Navy on Dec. 8, 1992; the stated reason on his
certificate was "homosexuality -- stated he or she is a homosexual or bisexual." Evans argued
that the Navy considers homosexuality to be a matter of "inaptitude" for military service, so he
should be entitled to unemployment benefits, but was turned down by the Commission. "The
Commission found that the Navy had not designated Evans as inapt. It had made no finding that
he was incapable of performing duties in the Navy. The Navy simply discharged him for his
stated sexual preference without making a designation that brought him within the scope of 5
U.S.C. sec. 8521(a)(1)," which provides that military dischargees are eligible for unemployment
benefits if the separation was either "for the convenience of the Government. . ., because of
medical disqualification. . ., because of hardship. . ., or because of personality disorders or
inaptitude."
The British ban on military service by gays is also under litigation attack. The Daily Mail
reported March 9 that the European High Court is considering allegations that the dismissal of
a lesbian RAF nurse, Jeanette Smith, violates the European Union's anti-discrimination laws.
Smith's argument is that the sex discrimination provisions of Union laws ban sexual orientation
discrimination. A.S.L.
California Appellate Panel: Anti-Gay Employment Termination Violates Public Policy -- But Not
Constitutional Privacy Right
The California Court of Appeal, 1st District, ruled March 9 in Leibert v. Transworld Systems,
Inc., 1995 WL 96015, that a discharged gay employee can bring a tort action for wrongful
discharge in violation of public policy, even though he failed to exhaust administrative remedies
under state Labor Code provisions banning sexual orientation discrimination. Reversing the
superior court in an opinion by Judge Haerle, the court also revived a claim for intentional
infliction of emotional distress, but sustained dismissal of a state constitutional privacy claim.
Chad Leibert was discharged on Aug. 15, 1991. He had begun working for Transworld on
April 4, but after co-workers and managerial employees learned he is gay, Leibert claims, they
began to refer to him as "fag" and subject him to ridicule and harassment. According to the
complaint, on or about May 7 a vice-president of Transworld instructed another employee to
"keep a close watch" on Leibert and "that any mistake [by Leibert] would result in his
immediate termination because `I do not need a fag working for me in this office.'" Leibert
sued on several theories: violation of Labor Code secs. 1101, 1102, and 1102.1, violation of
state constitutional right to privacy, wrongful termination in violation of public policy,
intentional and/or negligent infliction of emotional distress, and breach of implied contract. The
trial court dismissed or granted summary judgment on all claims; Leibert appealed as to the
Labor Code, privacy, and intentional tort claims.
The Labor Code claims were dismissed because Leibert failed to allege exhaustion of
administrative remedies. His attorney, Paul Wotman, asserted that exhaustion was not required,
and sought to introduce evidence that this was the view of the state department of industrial
relations, but his attempts were unavailing and the court of appeal found, in a procedurally
complicated analysis, that the issue was not properly before it for a ruling on the merits, so this
case does not decide whether exhaustion is mandatory under the sexual orientation provisions
enacted in 1992.
The court sustained dismissal of the constitutional claim. Although California cases hold that
the state constitutional right of privacy applies to private employment, the court found Leibert's
allegations did not fit within the settled analysis. Finding that Leibert had "specifically alleged
that his sexual orientation was not confidential," the court held "as a matter of law, [Leibert]
cannot state a claim for infringement of a legally protected informational privacy interest."
Turning to the alternative theory of violation of personal autonomy, the court found that an
allegation of discrimination on the basis of sexual orientation does not, by itself, amount to "an
`intrusion,' `observation' or `interference' with the making of `intimate personal decisions' or
the conduct of `personal activities' of the type protected by the state constitutional right to
privacy."
As to intentional tort claims, the court found that the superior court erred in dismissing them.
California courts recognize a tort action for wrongful discharge in violation of public policy,
Tameny v. Atlantic Richfield Co., 27 Cal.3d 167 (1980). "Discrimination on the basis of sexual
orientation is outlawed under the prohibitions on discrimination on the basis of political activities
or affiliations found in secs. 1101 and 1102 [of the Labor Code]" which were in effect when this
discharge took place. The question, then, was whether failure to exhaust administrative
remedies would make the Labor Code provisions unavailable to support a public policy tort
cause of action. The court concluded that exhaustion had not been required in the past in
Tameny-type non-statutory actions. "In our view, the rationale of the Tameny claim would be
undermined if a violation of a fundamental public policy of the state had to remain unredressed
simply because a plaintiff failed to pursue nonexclusive administrative remedies. Respondent
advances no reason, and we discern none (other than possible economic and public policy
concerns more appropriately left to the Legislature), why this nonstatutory, tort cause of action
should be treated differently than other nonstatutory claims for purposes of application of the
exhaustion doctrine."
Similarly, the court found no reason to dismiss the intentional infliction of emotional distress
claim, agreeing with Leibert that the workers' compensation laws did not provide the exclusive
remedy, and that the employer's alleged "misconduct lies outside of the exclusive remedy
provisions of the Labor Code."
"Employment discrimination, whether based upon sex, race, religion or sexual orientation, is
invidious and violates a fundamental public policy of this state," concluded the court, remanding
for trial on the tort claims. Although the decision appears a setback in an attempt to use the
right of privacy beyond the limited context of pre-employment questioning about sexuality, the
recognition of continued viability of a Tameny tort action despite the enactment of the Labor
Code provisions (with their limited remedial scope) makes this decision a potentially important
precedent. A.S.L.
Federal Court Holds Discrimination Against a Gay Couple is Neither Marital Status Nor Sexual
Orientation Discrimination
In Bagley v. California Federal Bank, CV 93-7027 (C.D. Cal., March 3 ), a federal court found
that a gay man and his partner, denied a loan because they were neither married nor immediate
family members, were not discriminated against on the basis of marital status or sexual
orientation. The court ruled that CalFed did not discriminate against Jeffrey Bagley and his
partner when Bagley was denied a discounted loan offered to bank employees wishing to buy
a house with their spouse or other immediate family members.
Bagley, a vice president at the Bank, and Peter Lavin, his partner of 10 years, applied for the
discounted loan offered by his employer, CalFed, in order to purchase a house. CalFed denied
the low-interest loan to Bagley and Lavin because they were neither married nor "immediate
family members." Bagley and Levin argued that the bank's actions violated, among other
things, the federal Equal Credit and Opportunity Act (ECOA), which bans creditors from
discriminating on the sole basis of marital status.
U.S. District Judge Mariana R. Pfaelzer ruled that CalFed did not violate the ECOA, finding
that the bank did not discriminate against Bagley on the basis of his marital status because he
would have been eligible for the discounted loan if he applied for it by himself as an unmarried
person. Pfaelzer also found that discrimination on the basis of sexual orientation did not occur
since Bagley would have been granted the loan if he had applied as a single person or with an
immediate family member regardless of his sexual orientation. Pfaelzer did not address the fact
that Bagley and Levin are prohibited by law from getting married to each other. M.B.
Oklahoma Court Upholds Death Sentence for Anti-Gay Slayer
Finding the case against Gerardo Valdez in the murder of Juan Barron to be "compelling," the
Oklahoma Court of Criminal Appeals affirmed a death sentence in Valdez v. State, 1995 WL
107446 (March 1). Valdez and Barron were introduced by mutual friends in a bar in April
1989. After considerable drinking, during which Barron, a gay man, showed great interest in
Valdez, Valdez invited Barron and another friend, Martin Orduna, to his house. Orduna related
the following story at the trial: After the three men got to Valdez's house, Valdez got a gun and
told Barron he was going to kill him; he began slapping Barron, then showed Barron a Bible and
told him that according to the Bible homosexuals do not deserve to live; Valdez asked Barron
whether he wanted Valdez to castrate or kill him, made Barron remove his clothes, then began
hitting and slapping him. When Barron started to fight back, Valdez shot him twice in the head,
then hit him in the side of the head with his gun, and finally slit his throat with a kitchen knife.
Valdez confessed to most of this to the police, indicating that he had not initially intended to kill
Barron, but merely wanted to show him the error of his ways. Valdez claimed he became angry
and killed Barron when Barron refused to listen to his Bible message.
In appealing the death sentence, Valdez made an incompetency argument, asserted that admission
of his confession was improper, suggested ineffective assistance of counsel, and made various
other arguments. The court found none of these arguments to be substantial, and concluded that
"the evidence in support of the heinous, atrocious or cruel and continuing threat aggravators [for
sentencing purposes] was compelling." A.S.L.
Federal Court Bars Constitutional Claims in Employment Suit
In a suit by a former civilian employee of the Department of Defense (DoD) alleging
discrimination based on race, gender, and sexual orientation, District Judge Lawrence McKenna
refused to allow plaintiff Gary Rhyne to amend his complaint to increase his claim for money
damages or to add additional constitutional claims. Rhyne v. Perry, 1995 WL 77970 (S.D.N.Y.,
Feb. 24). Rhyne's complaint alleged he was denied promotion and later terminated from his
position as principal of an elementary school in Germany based upon his being a black, male
homosexual. Prior to filing in federal district court, Rhyne filed a complaint both with DoD
and, later, with the Equal Employment Opportunity Commission. Both complaints were denied.
In this action, Rhyne alleged violations of Title VII of the Civil Rights Act of 1964, and the
Civil Rights Act of 1991.
The incidents alleged in Rhyne's original complaint took place before the Supreme Court held
that the Civil Rights Act of 1991 was not retroactive to acts occurring before November 21,
1991. Ladgraf v. USI Film Prods., 114 S.Ct. 1483, 1508 (1994) Rhyne was therefore
disallowed from receiving a jury trial and also from seeking compensatory damages. The court
did not grant DoD's motion to have Rhyne's allegations of misconduct involving his denial of
promotion stricken. While finding that no independent basis of recovery existed for this cause
of action, its potential relevance to the termination claim was sufficient to demonstrate that it
was not "redundant, immaterial, impertinent or scandalous matter" pursuant to Fed.R.Civ.P.
12(f).
Rhyne sought unsuccessfully to add allegations of due process and equal protection violations.
However, because in a suit against an "officer of the United States in his or her official capacity,
the real party in interest is the U.S.," defendant would have to waive its sovereign immunity for
a suit to proceed against it on these grounds. Since the U.S. has never explicitly waived its
sovereign immunity from suits of this type, Rhyne's motion was denied. The court did note,
however, that Rhyne could have filed such a complaint under the Civil Service Reform Act, and
then sought review of an adverse decision in the district court under certain circumstances.
Since Rhyne was unable to demonstrate that he had filed such a complaint, the District Court
was without jurisdiction to hear his complaint. P.T.
N.C. Court Affirms Conviction for Murdering Gay Man
The Supreme Court of North Carolina affirmed the conviction of an 18-year-old accused of
murdering a gay man in his home, despite attempts by the defense to show the assault was
provoked by homosexual advances. State v. Lovin, 1995 WL 85484 (March 3). After
dismissing defendant's claims of unlawful arrest and motions to suppress evidence, Justice Webb
held that the defense could not introduce contents of pornographic videotapes found in the
victim's apartment. The tapes portrayed "violent acts of anal intercourse" and were sought to
be introduced because of their "great value to the jury in determining whether the victim was
the aggressor with the intent to sodomize" the defendant. The victim's homosexuality was not
in issue and the court concluded that the tapes had "little tendency to show that the victim was
the aggressor" and would have been "inflammatory and prejudicial."
The court also held that while it was error to refuse the defense's introduction of the full
affidavit statement made by a witness who testified that the victim molested him in the past, the
error was harmless as the affidavit was prepared only a few days before trial and would have
"added little" to the witnesses's in-court testimony. Finally, the court held that the defense
could not introduce contents of letters written by the defendant while incarcerated to his
girlfriend, purportedly detailing the victim's assault of the defendant, even though the
prosecution initially introduced a part of the defendant's prior statements. Other assignments
of error were overruled. R.B.
Ohio Court of Appeals Reverses Child Custody Award From Lesbian Mother
In Phillips v. Phillips, 1995 WL 115426 (Oh.App., 12th Dist., March 20) (not officially
published), the Ohio Court of Appeals ruled that a trial court abused its discretion by designating
Bridget Phillips as residential parent of three children of her marriage to Larry Phillips in the
context of a divorce proceeding. The trial court found that Bridget was living in a lesbian
relationship with Ruth Hubbard, and that the children were "exposed" to this relationship, seeing
their mother in bed with her lover. As summarized in the opinion of Judge Young, "The record
indicates that when interviewed by the court, the parties' son, Brandon, led the court to conclude
that appellee has allowed the children to be exposed to her sexual orientation and activities. The
record indicates that Brandon has witnessed his mother in bed kissing her lesbian partner, Ruth
Hubbard. Brandon further testified to the court that he witnessed Hubbard touching his younger
sister, Emma, below the waist. Finally, the record indicates that appellee and Hubbard left
Brandon and another minor child inside Kings Island amusement park to manage by themselves,
while they went to the parking lot to `smoke drugs,' clearly overlooking the children's best
interest." The trial court also found that Bridget "allowed her relationship with Hubbard to
interfere with her relationship with the children."
"Our concern," wrote Young, "is not with the existence of the relationship with Hubbard, but
rather that the relationship is alienating the children and unnecessarily competing with the
children's time with their mother." The trial court received expert testimony from Dr. Marilyn
Shea, who examined the parties and the children and recommended that Bridget be designated
the residential parent, although the record reflected that Brandon has a respiratory problem and
Bridget smokes in his presence, aggravating the condition.
The trial court stated that it was presented with a "close question," but designated Bridget the
residential parent, speculating that she would "modify her habits to conform to what is necessary
to serve the best interests of the children." The appeals court disagreed, and sustained Larry's
appeal without much explanation. There were other issues on the appeal, not relevant to
Bridget's sexual orientation. A.S.L.
Michigan Supreme Court Upholds Gross Indecency Charges
The Supreme Court of Michigan upheld a state statute prohibiting
gross indecency, reinstating the conviction of one defendant and
ordering another to stand trial. People v. Lino; People v.
Brashier, 1994 WL 760848 (Mich., Dec. 28, 1994). Rejecting a
constitutional vagueness challenge, the court delivered its
decision in a memorandum signed by all seven justices and
accompanied by separate concurring and partially concurring
opinions.
In Lino, police observed the defendant, a male transvestite
prostitute, fellating a customer in a pick-up truck parked in an
otherwise empty lot around 12:30 a.m. In Brashier, the defendant
allegedly procured underage boys for his co-defendant Goike by
offering them money in exchange for "beatin' up a queer,"
explaining details over lunch, then taking the boys to a hotel room
where he supervised them performing various sadistic acts on Goike
(who masturbated in what turned out to be an S&M ritual), then
paying the boys and threatening to harm them if they told anyone
what had happened. Michigan law prohibits "gross indecency," with
specific sections applying to particular combinations of
participants' ages, sexes, and conduct. The defendants were
arrested and charged with violating this statute.
Both defendants argued that the statute is unconstitutionally vague
because it does not define "gross indecency." A majority of the
justices rejected Lino's challenge because prior cases had defined
gross indecency to encompass public fellatio between males, thus
curing the statute of vagueness as applied to him. Similarly, a
majority of justices rejected Brashier's challenge, alluding to the
"moral quality of the conduct" and asserting that he "cannot
plausibly claim that he could not have known his conduct was
prohibited." Reversing a lower appellate decision, the court ruled
that the definition of gross indecency depends not on the common
sense of the jury but rather on the legal sense of the term as
defined in the penal code and its judicial interpretation.
Justice Levin concurred separately, calling for a clearer
definition of gross indecency, specifically asking whether the
statute prohibits consenting adults (in particular, gay men and
lesbians) from engaging in sex in private, which he would hold it
does not. Justice Levin added that a public place is a place open
to public view in which one would reasonably expect to find members
of the public, stating that he would have remanded Lino for trial
on the issue of whether an otherwise deserted parking lot in the
middle of the night is really "in public."
Justice Boyle wrote a partially concurring opinion arguing that
"[t]he statute covers only oral-genital sex that a jury finds in
the circumstances indecent," and that any other conduct is either
prohibited by other statutes or is not illegal. Justice Boyle thus
concurred in the court's decision in Lino, but dissented from the
decision in Brashier. Justice Brickley concurred.
Justice Riley also wrote a partially concurring opinion, agreeing
with the court on every point except the definition of gross
indecency, which he believes "is defined by the common sense of the
community, i.e., it becomes a question for the trier of fact."
Justice Griffin concurred. O.R.D.
Federal Judge Orders Trial on Homophobia Claim Against Milwaukee
Police in Dahmer-Related Case
U.S. District Judge Terence Evans ruled March 2 that there should
be a trial of whether Milwaukee police officers violated the civil
rights of Konerak Sinthasomphone, the Laotian teenager murdered by
Jeffrey Dahmer when police officers returned the boy to Dahmer
after a street confrontation between the boy and police. As
described in the opinion: "[O]n the evening of May 27, 1991, young
Sinthasomphone, a Laotian boy of 14, was seen wandering dazed and
naked on the corner of 25th and State in Milwaukee, Wisconsin.
Police officers, including the defendants Joseph Gabrish and John
Balcerzak, arrived on the scene. Shortly thereafter, the
now-well-known serial killer Jeffrey Dahmer, a white man, arrived
and explained to the police (who were also white) that
Sinthasomphone was his friend and that he was drunk. Despite the
vigorous protestations of several African-Americans on the scene,
the officers and Dahmer led Sinthasomphone back to Dahmer's
apartment, where the body of one of Dahmer's victims lay unnoticed
in an adjoining room. Concluding that Dahmer and Sinthasomphone
were adult homosexual lovers, the officers ultimately left
Sinthasomphone with Dahmer. Thirty minutes later, he became
Dahmer's thirteenth victim."
The plaintiffs allege there was an overall pattern of homophobia in
the city police department sufficient to bring into play federal
civil rights statutes guaranteeing equal protection of the laws.
The city argued that by 1991 "it was clearly against police policy
to maintain discriminatory practices," so that municipal liability
could not be found. Evans held that reaching a conclusion on these
conflicting factual assertions requires a trial. Likewise, Evans
held that it would be inappropriate to grant summary judgement to
individual police officer defendants, since it would be most
appropriate for a jury to determine what inferences to draw from
the facts as to discriminatory intent. A.S.L.
Federal Court Finds Cause of Action for Same-Sex Workplace
Harassment
Sharply disputing recent federal rulings that had dismissed claims
by men of same-sex sexual harassment under Title VII, Judge
Albritton of the U.S. District Court, Middle District of Alabama,
refused to grant summary judgment to the employer in Prescott v.
Independent Life and Accident Insurance Co., 1995 WL 114740 (Feb.
8). While dismissing an individual claim against the supervisor
who allegedly subjected plaintiff Ford Prescott to harassment,
Albritton held that it was appropriate to assert jurisdiction over
Prescott's pendent state law claim for assault and battery against
supervisor Meeks.
Prescott was hired in 1980. In 1992, Meeks was appointed District
Manager and became Prescott's direct supervisor. "According to the
plaintiff, beginning in November of 1992 and continuing until
plaintiff's termination in May, 1993, the defendant Meeks subjected
him to numerous unwanted sexual advances. These advances allegedly
took the form of unwanted touchings, implicit threats to
plaintiff's status at the company, as well as implicit promises of
advancement. Plaintiff also alleges an elaborate plan concocted by
Meeks to win the plaintiff over. Allegedly, when the plaintiff
refused to give in to the defendant's demands, defendant determined
to get rid of the plaintiff. Plaintiff alleges that Meeks
contrived a false record against the plaintiff as part of this
scheme to eliminate him." The company denied these allegations,
claiming that Prescott was "a gossip, who criticized his
supervisor's management style and decisions and openly speculated
as to aspects of Meeks' personal life, including his sexual
orientation." The company asserted that Prescott was properly
terminated for insubordination, and that subsequent to the
discharge it had discovered independent justifications for the
discharge, based on alleged drug use by Prescott and fraudulent
statements on his employment application.
The company sought dismissal based on Hopkins v. Baltimore Gas &
Electric Co., 871 F.Supp. 822 (D. Md. 1994) and Garcia v. Elf
Atochem North America, 28 F.3d 446 (5th Cir. 1994), which had in
turn relied on the rationale of Goluszek v. Smith, 697 F.Supp. 1452
(N.D. Ill. 1988). In Goluszek, the court stated that Title VII was
intended to remedy discrimination against powerless groups in the
workplace. "Therefore the male plaintiff in Goluszek could not
prevail because he was `a male in a male dominated environment.'"
Judge Albritton disputed this analysis of the claim:
"While this argument may be logically appealing, it is not the
current state of anti-discrimination jurisprudence. If it were, a
similar argument could be made when a white plaintiff attempts to
sue for reverse discrimination under Title VII. That white
plaintiff would have been at all times a member of the majority, a
member of the `dominant' race. However, the Supreme Court `has
consistently interpreted Title VII to proscribe racial
discrimination in private employment against whites on the same
terms as racial discrimination against nonwhites . . .' McDonald v.
Santa Fe Trail Transportation Co., 427 U.S. 273, 279 (1976).
"The language of Title VII is clear. Congress chose to use the
unmodified word `sex' when referring to the discrimination that is
forbidden. This is a choice of an obviously gender neutral term,
just as Congress chose to prohibit discrimination based on `race,'
rather than discrimination against African- Americans or other
specific minorities. It seems clear to the court that had Congress
intended to prevent only heterosexual sexual harassment, it could
have used the term `member of the opposite sex.' This way Congress
would have accounted for both male female harassment and the much
less frequent female-male harassment. . . When a homosexual man
propositions or harasses a male subordinate, but does not similarly
proposition or harass female workers, the male employee has been
singled out because of his gender. But for his being male, the
harassment would not have occurred."
So holding, Albritton denied the company's motion for summary
judgment, noting that under McKennon v. Nashville Banner Publishing
Co., 115 S.Ct. 879 (Jan. 23, 1995), any independent justification
that the employer uncovered after the discharge would not be
relevant to the company's Title VII violation, but might, after
trial, provide a basis of restricting the remedies available to
Prescott. Albritton found that it was "in the interest of judicial
economy" to retain jurisdiction over Prescott's pendent tort claim
against Meeks, even though 11th Circuit precedent required
dismissing Meeks as an individual Title VII defendant in the case,
since "Meeks' alleged conduct. . . is the activity that gave rise
to a federal claim against his employer. The state law claim
against Meeks is a part of the same case or controversy as the
plaintiff's Title VII claim against Independent Life." The court
also observed that if the plaintiff's allegations about Meeks'
conduct were proven, the company would automatically be liable
despite its claim that it was unaware of Meeks' activities. A.S.L.
Mixed Victory For Lesbian Couple Whose Photograph Was Published
Without Their Permission
In Merriwether v. Shorr, the plaintiffs, a lesbian couple, sought
damages against a professional photographer and a magazine
publisher. The plaintiffs, Valerie Merriwether and Rosetta Ford,
hired Kathy Shorr to chauffeur them to their commitment ceremony.
Kathy, a professional photographer, regularly took pictures of the
passengers in her limousine. When Kathy delivered a complimentary
photograph to the plaintiffs, she requested that they sign a
release form to permit her to use the photograph for commercial
purposes. Although plaintiffs refused to sign the release, six
years later the photograph appeared in a Popular Photography
magazine story about Schorr's work as a chauffeur. The caption
read: Lesbian Couple . . . two women on their way to a commitment
ceremony in Greenwich Village. Plaintiffs sought preliminary
injunctive relief; both defendants, Schorr and the magazine
publisher, moved for dismissal.
N.Y. Supreme Court Justice Lebedeff ruled that the publisher's
unauthorized use of the photograph was permitted under N.Y.'s Civil
Rights Law, since it was used for the dissemination of information
of public interest. N.Y.L.J., p. 28, col. 3 (March 6). Justice
Lebedeff wrote that "[t]he increasing ability of the gay community
to participate in ceremonies once reserved to the heterosexual
population is a reflection of the progress of society and is
newsworthy." Since this type of conduct is permissible under the
Civil Rights Law, the court denied the plaintiffs' request for a
preliminary injunction and granted the publisher's motion to
dismiss. However, because case law generally considers a
photographer's sale of a photograph to be a commercial transaction
and, under the Civil Rights Law, a photographer's use of a
photograph for commercial use is barred without the subjects'
consent, the court denied Schorr's motion to dismiss, and granted
plaintiffs' motion for injunctive relief.
The court also dismissed the plaintiffs' emotional distress claims
against both defendants. To prove emotional distress, a plaintiff
must allege that: (1) defendant engaged in conduct that went beyond
all possible bounds of decency; (2) plaintiff suffered several
emotional distress; and (3) defendant's conduct caused the
distress. Because the photograph itself -- taken with plaintiffs'
permission -- "is respectful both of the subjects and the moment
[and] ... show[ed] the two women gazing affectionately at each
other," the court ruled that the defendants' actions were not
sufficiently outrageous to sustain a claim of emotional distress.
C.B.R.
Tampa Vote Canceled by Florida Courts
Hillsborough County (Florida) Circuit Judge Manuel Menendez, Jr.,
ruled March 2 that the scheduled referendum on repeal of the Tampa,
Florida, ordinance barring sexual orientation discrimination must
be removed from the ballot. Menendez's rationale? In an attempt
to clarify the meaning of the ballot measure, city councilors had
altered its wording from the language that had been presented to
voters on petitions. Menendez decided that this invalidated the
petitions. "Nowwhere in the petition does there appear any mention
of the possibility of any change being made to the language," he
wrote. "The court must assume it was the language of the petition
and nothing else that the signatories were asking to place on the
ballot." According to a report in the St. Petersberg Times (March
3), City Attorney Thomas Gonzalez had described the council's
changes as "insubstantial," and filed an immediate appeal. But on
March 6, the 2nd District Court of Appeal affirmed Menendez's
ruling without explanation in a unanimous per curiam decision.
Iorio v. Citizens for a Fair Tampa, 1995 WL 92716. Furthermore,
U.S. District Judge Ralph W. Nimmons, Jr., rejected an attempt by
the local leaders of the American Family Association to interject
the federal court into the controversy. (St. Petersburg Times,
March 7.) So the vote scheduled for March 7 was not held. A.S.L.
Other Initiative and Referenda Notes
In Lowe v. Keisling, 882 P.2d 91 (Or.App. 1994), the Oregon Court
of Appeals rejected the argument that the statewide anti-gay ballot
measure then pending violated the single-subject rule and should be
removed from the ballot. The state's Supreme Court rejected an
attempt to bring the matter before it prior to the election on
November 8, when the voters narrowly defeated the ballot question.
On March 2, the Supreme Court dismissed as moot the remaining
petition for review, noting that "the proposed measure failed."
Three judges dissented, joining a decision by Justice Unis pointing
out that the appropriate way to handle this matter would be to
vacate the court of appeals' decision. As a result of the Supreme
Court's action, the court of appeals decision remains on the books
as a precedent, holding that the standard anti-gay ballot
initiative as framed by Lon Mabon's Oregon Citizens Alliance does
not violate the single-subject rule. Lowe v. Keisling, 1995 WL
87426 (Or.Sup.Ct., March 2).
Two anti-gay ballot measures are circulating in the state of
Washington, seeking sufficient petition signatures for ballot
status. One of the initiatives, similar to an unsuccessful
proposal from last year, would limit what could be taught about
homosexuality in schools, ban any protection against discrimination
for gays or bisexuals, and forbid same sex marriage. The other
would ban gay couples from adopting children. A.S.L.
St. Patrick's Day Brings Renewed Controversy in Boston and New York
Irish lesbian and gay groups were excluded from marching in the
traditional St. Patrick's Day parades in both Boston and New York
in March, as the Supreme Court prepared to hear oral argument in
April in an appeal of the Massachusetts Supreme Judicial Court's
order of last year requiring their inclusion. The Boston parade
went forward without the gay group because U.S. District Judge Mark
Wolf held in South Boston Allied War Veterans Council v. City of
Boston, 1995 WL 40641 (D.Mass., Jan. 17), that the parade
organizers had successfully transformed their parade into a
political event by declaring it a protest of the Mass. S.J.C.'s
decision! Responding to this turn of events, Mayor Tom Menino
declared that it was inappropriate for city officials to march in
a political parade, so he refused to march and ordered that
uniformed city services, which have traditionally joined the march,
refrain from doing so. Police and firefighters had to leave their
official vehicles behind and march in civilian garb. A new
controversy arose after the parade when it was learned that a group
of HIV+ military veterans had also been barred from marching. The
gay veterans group was considering either filing its own
discrimination charges, or moving to join the gay Irish group as a
co-party in its pending litigation.
In New York, the Irish Lesbian and Gay Organization (ILGO) filed
suit against the police department, seeking an order that they be
allowed to stage their own St. Patrick's Day parade on Fifth
Avenue, the location of the traditional parade. Irish Lesbian and
Gay Organization v. Bratton, 1995 WL 110600 (S.D.N.Y., March 15).
The ILGO suit was filed in state court and removed to federal court
by the defendants. ILGO's permit application originally proposed
an 8:30 a.m. parade. The traditional parade run by the Ancient
Order of Hibernians begins at 11 a.m. At the hearing before
District Judge Keenan, ILGO revised its request to suggest a 10
a.m. starting time. Keenan held that the police department did not
violate ILGO's First Amendment rights by denying the permit. While
conceding that ILGO had a constitutional right to communicate its
message by holding a parade, Keenan found that the police
department had content neutral reasons of sufficient weight to
refuse permitting a second parade on Fifth Avenue on March 17.
"Insofar as the Court finds that absolute chaos would reign on 5th
Avenue if a second parade were to be permitted, the Court finds
that the Police Department's denial of a second permit is
appropriate and narrowly tailored to protect the public safety and
well being of the citizenry of New York." Discussing possible
alternative means for ILGO to communicate its message through a
parade, Keenan remarked: "ILGO can conduct a parade and trumpet its
message on another day. Indeed, Irish history, tradition and
culture are not so drab and sterile as to permit of only one
hero--St. Patrick. Over the centuries, there have been scores of
Irish heroes whose lives, writings and deeds ILGO could honor and
recognize to further their celebration of Irish `cultural heritage
and pride.' Some of them, like Patrick, were born in other lands,
while many were born in Ireland." In a footnote, Keenan listed the
birthdates of several Irish cultural heroes, and implied that a
mid-October parade marking the birthdays of Oscar Wilde (Oct. 16)
and Eamon de Valera (Oct. 14) might be especially suitable. In the
event, several hundred ILGO members did show up on March 17 for
their own demonstration, despite an unsuccessful last minute appeal
to the U.S. Court of Appeals for the 2nd Circuit, and several score
were arrested by police officers for refusing to disperse. A.S.L.
Court Denies Same-Sex Harassment Claim
In Ryczek v. Guest Services, Inc., 1995 WL 91388 (D.D.C., Feb. 27),
U.S. District Court Judge Thomas Hogan granted summary judgment to
the defendants in a same-sex sexual harassment case brought under
Title VII of the Civil Rights Act of 1964. Plaintiff Francine
Ryczek was participating in a cooperative education program while
a student at Johnson & Wales University in Providence, Rhode
Island. Her placement was with Guest Services, a D.C. company that
provides catering services to various organizations. Ryczek was
assigned to work in food services at the Air and Space Museum of
the Smithsonian Institute. In her complaint, she alleged that she
had been subjected to unlawful sexual harassment by her supervisor,
Catherine O'Brien, who alleged "told the plaintiff about her sexual
preference for females, inquired about the plaintiff's sexual
practices, and made other inappropriate comments; that O'Brien
dipped the plaintiff's finger into a pot of sauce and licked the
finger; that O'Brien looked at the plaintiff suggestively and
leaned against her; and that O'Brien removed her shirt when she was
riding with the plaintiff in an elevator." Ryczek complained about
this treatment, was transferred, and the employer undertook an
investigation. Although the employer decided that most of Ryczek's
claims were without merit, it did find that O'Brien used
inappropriate language, required her to undergo counselling, and
placed a memo in her personnel file about the incident.
Hogan found that under the circumstances the employer was entitled
to summary judgement, since it took the necessary steps to remedy
the situation after being informed of the claimed harassment. The
employer sought to bolster its case by citing recent decisions from
other circuit and district courts holding that same-sex harassment
was not sex discrimination under Title VII. Hogan found that there
was no controlling precedent on the question in the D.C. Circuit,
but that dicta in some prior cases suggested that same-sex
harassment by a gay or lesbian supervisor could be actionable,
while harassment by a bisexual supervisor would not be actionable.
In light of these cases, one of the factual disputes between the
parties was whether O'Brien was a lesbian or a bisexual.
"The Court is not well-prepared to resolve such a dispute," wrote
Hogan (somewhat tongue-in-cheek?).
"This purported issue of fact suggests a practical flaw in this
Circuit's interpretation of Title VII. Assuming that the language
in Barnes and Bundy is the law of this Circuit, any defendant could
avoid Title VII liability for sexual harassment by claiming to be
a bisexual or by harassing members of both sexes. This would
appear to produce an anomalous result: a victim of sexual
harassment in the District of Columbia would have a Title VII
remedy in all situations except those in which the victim is
harassed by a particularly unspeakable cad who harasses both men
and women. In addition to this troubling possibility, the prospect
of having litigants debate and juries determine the sexual
orientation of Title VII defendants is a rather unpleasant one."
Thankfully, concluded Hogan, he did not have to take on the
"unpleasant" task, since it seemed clear under existing precedent
that the employer's response to the situation relieved it of any
liability for O'Brien's alleged conduct. A.S.L.
Idaho Court Overrules Discipline for Over-Friendly Teacher
The Idaho Supreme Court on Feb. 24 vacated the state board of
education's one-year suspension of a female junior high school
teacher who carried on a close friendship with a girl who was a
junior at the city's high school. Macrae v. Smith, 1995 WL 73721.
The relationship allegedly led the girl to question her sexual
orientation. Although rejecting allegations that the teacher
kissed and fondled the student without her consent, the hearing
panel determined that the teacher violated a principle of the state
teaching code of ethics requiring teachers to protect students from
conditions detrimental to students' physiological or psychological
well-being. Rejecting the panel's recommendation that the teacher
receive a letter of reprimand, the board of education ordered the
one-year suspension, but in so doing the board failed to fully
consider the record developed before the panel. Since state law
required the board's consideration of the full record, the court,
without addressing the circumstances of the alleged misconduct,
remanded the matter to the board for further proceedings. R.M.
No Private Right of Action Under Portland Ordinance
U.S. District Judge Frye (D. Or.), granted an employer's motion to
dismiss a claim alleging violation of Portland, Oregon's sexual
orientation discrimination ban, on the ground that the action was
untimely and that the city ordinance conferred no private right of
action. The claim was filed in state court by the discharged
employee more than one year after her discharge, and was removed to
federal court on diversity grounds. The court found that under
home rule provisions Oregon cities do not have authority to expand
the jurisdiction of the state's circuit courts, and the council
had, in fact, expressly provided that actions to enforce the
ordinance would be brought by the city attorney in the name of the
city. Finding that this was the exclusive means of judicial
enforcement, the court dismissed the claim. Seidel v. Albertson's,
Inc., 1995 WL 82271 (Feb. 22). A.S.L.
Housing Discrimination Update
A gay couple claiming homophobic harassment by their landlord won
a jury verdict in Los Angeles County (CA) Superior Court (Santa
Monica) on December 2. The jury awarded $100,000 in civil
penalties for violation of the Unruh Civil Rights Act, which has
been construed by California courts to forbid sexual orientation
discrimination by landlords, as well as $70,000 compensatory
damages and $300,000 punitive damages. The plaintiffs claimed that
after they had complained about problems with the building and
refused the landlord's request to move out, the landlord incited a
campaign of homophobic intimidation and harassment against them.
The landlord counterclaimed for harassment, citing in particular an
incident when it was claimed that one of the plaintiffs brandished
a weapon while one of the defendants was attempting to make
building repairs. The jury awarded $15,060 against the plaintiffs
on the counterclaim. Trial judge Richard G. Harris awarded the
plaintiffs attorney fees of $100,000, as well as $20,866 in court
costs. Plaintiffs were represented by John R. Fuchs and Scott D.
Fisher of Los Angeles. The verdict was reported in summary in the
Los Angeles Daily Journal on Dec. 23 under the pseudonym of Does v.
Roes. A.S.L.
In Cooper v. 6 West 20th Street Tenants Corp., 1995 WL 75477
(S.D.N.Y., Feb. 22), the plaintiffs, apparently a gay male couple,
sought to purchase a cooperative apartment in Manhattan. When they
were denied board approval, they sued the cooperative, the board
members, and the shareholders in federal court, alleging a variety
of claims under state and federal law and asserting diversity of
citizenship. The opinion by District Judge Keenan conditionally
dismissing their claim is ambiguous as to the facts.
The court granted the defendants' motion to dismiss the claim under
42 U.S.C. sec. 1983, and denied plaintiffs' cross-motion for leave
to amend. A claim under sec. 1983 must allege state action or
private action under color of state law to deprive plaintiffs of
their civil rights, but the plaintiffs' complaint disavowed any
state action by the defendants or government officials. The court
also dismissed the other federal claims: sec. 1985(3) requires
pleading the existence of a conspiracy to hinder state authorities
from securing to all persons within the state the equal protection
of the law, and a racial or other class-based discriminatory animus
behind the conspirators' actions, according to Keenan. Here, the
plaintiff identified only two possible classes of discriminatees:
property owners and homosexual men. Keenan found that neither was
a protected class under sec. 1985 or under sec. 1986, which was
also asserted in the complaint. Keenan denied plaintiffs' motions
to amend these claims, because he felt it was clear that the claim
could not be repled to state a cause of action under federal civil
rights statutes.
As to state claims, pendent federal jurisdiction depended on
diversity of the parties. Keenan granted the defendants' motion to
dismiss due to failure to state a cause of action based on
diversity because the plaintiffs (Pennsylvania residents) failed to
allege complete diversity between themselves and each of the 35
individual and corporate defendants with sufficient particularity.
However, plaintiffs were granted leave to amend because this defect
might be curable. S.K.
Domestic Partnership Notes
Employers recently reported to have adopted domestic partner
benefit plans: Kansas City Star, the city's major daily newspaper;
Dana-Farber Cancer Institute (Boston); Jet Propulsion Laboratory
and California Institute of Technology (see Los Angeles Times
(March 30); Hamilton College (Clinton, N.Y.). In collective
bargaining over employee benefits, Civil Service Employees
Association, the largest union representing New York State public
employees, has reached agreement on including domestic partnership
benefits in its new contract with the Republican Pataki
administration, but eligibility will be limited to those who have
been living together at least a year, and there will be a two year
waiting period between partnerships; the policy includes both
opposite-sex and same-sex partners.
The Denver, Colorado, Career Service Board voted 4-1 on March 16 to
amend the city's sick leave policy so that employees can take paid
leave to care for a domestic partner or member of the partner's
immediate family. The Board received a petition from about 125
city employees urging adoption of the change, responding to last
year's decision by the Colorado Court of Appeals in Ross v. Denver
Department of Health and Hospitals, No. 93CA0014 (4/7/94), in which
the court rejected a claim for such benefits coverage. See BNA
Daily Labor Report No. 52, 3/17/95, at A-16.
Commenting on the anti-gay tone of N.Y. State Senator Joseph Bruno
in his announcement that domestic partnership benefits will not be
extended to Senate staff, Newsday (March 29) noted that "the
majority of those taking advantage of the domestic partners
provision are heterosexual couples." Although data was not
available on state employee benefits enrollment, in Ithaca, N.Y.,
5 out of 6 couples enrolled were opposite-sex couples, and in
Rochester, N.Y., 31 heterosexual couples, 5 homosexual couples, and
5 dependents enrolled under the program.
Allstate Insurance Co. announced it would revise its homeowner
excess liability policy to allow joint coverage for same-sex
couples. Pittsburgh Post-Gazette (March 5). The change resulted
from negotiations with Lambda Legal Defense Fund, which represented
a gay couple in New York City, registered under the city's domestic
partnership program, whose attempt to buy such a policy to cover
their apartment was initially denied.
The California State Assembly Judiciary Committee rejected A.B.
687, this year's version of the state domestic partnership bill, by
one vote on March 29. The bill passed the legislature last year
but was vetoed by Governor Wilson, who argued that lesbian and gay
couples could achieve all the protection and rights provided in the
bill through other means. The bill would not have created any
benefits entitlement, but was aimed at estate planning concerns and
recognition of partners in certain emergency situations.
In a case that may involve a domestic partnership, N.Y. County
Surrogate Eve Preminger ruled in Estate of Thearon Wayne Knight,
Deceased, NYLJ, March 13, p. 29, that the surviving partner, David
Arensault, a beneficiary under Knight's will, could claim half the
assets in a joint checking account that he and Knight opened three
years prior to Knight's death in 1987. Arensault and Knight
resided together in a house in upstate New York and a cooperative
apartment in the city. Knight operated a business, and was the
owner of both the house and the co-op. Knight made most of the
deposits into the account, but Arensault managed the account and
wrote checks to cover mortgage and maintenance payments, car loan,
telephone, electric and other household expenses. The parties did
not check the box on the application form to indicate survivorship
rights; thus, by operation of law, they would hold the account as
tenants in common, ruled Preminger, with the survivor entitled to
half the assets and the remainder passing into Knight's estate.
Preminger rejected the executor's argument that this was merely a
convenience account, the entirety of which should belong to the
estate, as well as Arensault's argument that under the
circumstances it should be treated as a survivorship account,
entitling him to all the assets. There is no indication in the
opinion that this is a gay couple, it just seems likely. A.S.L.
Court Orders Visitation for Lesbian Co-Parent After Death of
Biological Mother
Wayne County, Michigan, Circuit Judge William Giovan granted
weekend visitation rights to Carol Hess, the lesbian co-parent of
Jonathan Porter, 13, and Nathaniel Porter, 10, on March 17. The
boys' biological mother, Leigh Porter, died from cancer on Jan. 13,
and custody was awarded to their father, Russell Overton. Hess
filed suit against Overton seeking a change of custody, arguing
that she had been co-parenting these boys since 1988 and that it
was their mother's wish that she take care of them. The weekend
visitation was granted pending final determination of the custody
suit. Chicago Tribune, March 20. A.S.L.
No Right to Cross-Dress in State Penitentiary
In Long v. Nix, 1995 WL 96864, an Iowa federal district court held
that a male Iowa state penitentiary inmate asserting a 42 U.S.C.
sec. 1983 action had no federal constitutional right to be
permitted to cross-dress or to receive medical treatment for his
gender dysphoria. Quoting Estelle v. Gamble, 429 U.S. 97 (1976),
the court noted that an 8th Amendment violation occurred where the
state acted with "deliberate indifference" to a prisoner's serious
medical need. Finding the extent of the inmate's gender identity
disorder insufficient to constitute a serious medical need, the
court observed that the inmate was motivated by the need for both
female gender identity expression and sexual stimulation, and the
latter stimulus was not of protectable magnitude. Summarily
rejecting the inmate's 14th amendment due process claim, the court
declared that the inmate had no property or liberty interest in
either particular medical care or a specific prison classification.
R.M.
Same-Sex Marriage Developments
Concerned about the possibility that same-sex couples may be able
to marry in Hawaii and will seek to gain recognition of their
marriages elsewhere, several state legislatures have taken up
proposals to enact public policy statements against same-sex
marriage that might be relied upon by courts to deny "full faith
and credit" to out-of-state marriages. On March 17, Utah Governor
Mike Leavitt signed such a bill into law. A spokesperson for Gay
and Lesbian Utah Democrats (GLUD) vowed that the organization would
challenge the constitutionality of the measure in court, once there
is a married same-sex couple to bring a challenge (which may not be
for several years due to the snails pace of the Hawaii litigation).
The ACLU of Utah director indicated she expected her organization
to be involved in any such lawsuit. San Francisco Sentinel, March
22. Meanwhile, GLUD has launched an effort to keep the Winter
Olympics out of Utah in 2002 as a protest. * * * Previously, the
South Dakota Senate voted 17-13 on March 1 to reject a similar
bill, which had passed the state's House of Representatives. A
similar bill is pending in Alaska.
In Baehr v. Lewin, the Hawaii same-sex marriage case scheduled for
trial beginning September 25, Honolulu Circuit Court motions judge
Herbert K. Shimabukuro rejected a motion by the Mormon Church to
become a co-defendant in the case with the state of Hawaii. The
church apparently thought the state would not defend the current
marriage law with sufficient vigor, in light of statements
supporting same-sex marriage by Governor Cayetano.
Hungary's Constitutional Court issued a ruling March 8 rejecting a
constitutional challenge to the exclusion of same-sex couples from
obtaining civil marriages. In the same decision, however, it held
unconstitutional the exclusion of same-sex couples from common law
marriage. The case was brought by Homerosz Lambda Organization, a
Hungarian gay activist group. The court sent the issue to the
legislature for adjustments to the statute governing common law
marriage. Unless some change is made to Hungary's constitution in
response to this case, it appears that same-sex couples will be
entitled to the benefits of common law marriage, as that concept is
embraced in Hungarian law. (Interestingly, the Associate Press
reported the story as a loss for the gay group [see New Orleans
Times-Picayune, March 9], while Reuters [see San Francisco
Examiner] reported it as a win, also on March 9.)
Reuters reported March 15 that two Cambodian women, one dressed as
a man, were legally married in large ceremony in Kro Bao Ach Kok
village, according to a Cambodian newspaper which described the
event as a "strange story." Cultural diversity, we say. A.S.L.
N.Y. Court Rules Discrimination Against Transsexual is Sex
Discrimination
Finding that N.Y. City's employment discrimination ordinance should
be broadly construed to achieve its intended purpose, a State
Supreme Court justice held that the prohibition against sex
discrimination in the workplace applies to transsexuals. Maffei v.
Kolaeton Industry Inc., S.Ct. N.Y. Co., IA Part 19, NYLJ, 3/17/95
p.26 (Lehner, J.).
The issue arose after plaintiff, born Diane Maffei, underwent sex
reassignment surgery in January 1994. Although the record is
unclear as to what physical changes had taken place, the plaintiff
held himself out to be Daniel Maffei. He had been employed by
Kolaeton Industry for 8 years prior to the surgery. Until then, he
was frequently praised for his work and received numerous pay
increases and bonuses. After his operation, the president of
Kolaeton, Mr. Wong, began to degrade and humiliate the plaintiff,
stripped him of his duties, and stated in front of the office that
what he did was "immoral." Plaintiff claimed that this rose to the
level of a hostile work environment. Defendant denied plaintiff's
allegations and moved to dismiss the complaint for failure to state
a claim on which relief can be granted. The defendant asserted
that even if the allegations were true, there is no cause of action
because neither federal, state nor city laws recognize transsexuals
as a protected class.
Justice Lehner first reviewed the applicable statutes. Title VII
of the 1964 Civil Rights Act, as well as state and city laws,
prohibit discrimination on the basis of sex. N.Y. City law also
prohibits discrimination on the basis of sexual orientation. Two
major Supreme Court cases are used as the benchmark for Title VII
violations. The first, Meritor Savings Bank v. Vinson, 477 U.S. 57
(1986), held that "[i]n order for sexual harassment to be
actionable, it must be sufficiently severe or pervasive to alter
the conditions of (the victim's) employment and create an abusive
working environment." In the second, Harris v. Forklift Systems,
Inc. 114 S.Ct. 367 (1993), Justice O'Connor wrote: "Title VII
comes into play before the harassing conduct leads to a nervous
breakdown. A discriminatorily abusive work environment, even one
that does not seriously affect employees' psychological well-being,
can and often will detract from employees' job performance,
discourage employees from remaining on the job, or keep them from
advancing in their careers."
The plaintiff did not claim to fall within the federal or state
statute, but relied on the city provision prohibiting sexual
orientation discrimination. Justice Lehner found that this did not
help Maffei, stating that the prohibition against sexual
orientation discrimination deals with "sexual preferences and
practices," and that these were not at issue. "There is no claim
that the harassment alleged herein is the result of any sexual
preferences expressed by plaintiff." He added that in Underwood v.
Archer Management, 857 F.Supp. 96 (D.D.C. 1994), the only case in
which a transsexual sought to claim coverage on a statute
prohibiting discrimination based on sexual orientation, the
complaint was dismissed because it was "devoid of any claim of
discriminatory conduct based on plaintiff's real or perceived
preference or practice of sexuality." The court distinguished
transsexuals from homosexuals; in its view, transsexuals may be
aroused by persons of the same anatomic sex, like homosexuals, but
transsexuals do not view themselves as members of that sex, whereas
homosexuals do.
Federal courts have unanimously held that Title VII prohibitions do
not apply to transsexuals. Ulane v. Eastern Airlines, Inc., 742
F.2d 1081 (7th Cir. 1984) cert. denied 471 U.S. 1017, found that
"[w]hile a transsexual claiming discrimination because of his or
her current status as a male or female could state a valid cause of
action under Title VII, the discrimination was because the
plaintiff was a biological male who takes female hormones, cross
dresses, and has surgically altered parts of her body to make it
appear to be female. The statute does not protect persons based on
their sexual identity." Lehner concluded that the Ulane ruling is
consistent with every federal ruling on the issue, but that the
federal cases were unduly restrictive and that they should not be
followed in interpreting the city ordinance.
The court then considered the only N.Y. case on the issue, Richards
v. United States Tennis Association, 93 Misc.2d 713 (Sup.Ct. N.Y.
Co. 1977), in which Dr. Renee Richards, who had undergone sex
reassignment surgery from male to female, sued USTA for prohibiting
her from participating in the women's division of the United States
Open Tennis Tournament. The Richards court had found that there
was "overwhelming medical evidence" that demonstrated the plaintiff
was female. Lehner observed that in most of the federal cases, the
courts focused on the fact that there were numerous attempts in
Congress to add "sexual orientation" to Title VII, all of which had
failed. He then added, in what is perhaps the most startling in
an opinion of startling statements, "[b]ecause Congress may have
chosen not to include the term `sexual orientation' in Title VII
does not mean that it has considered and declined coverage to
transsexuals." But in the reverse, he opined, if it is logical to
assume that the failure of Congress to adopt legislation including
sexual orientation in Title VII is proof of a lack of intent to
include transsexuals, then the inclusion of sexual orientation in
a statute evidences an intent to cover transsexuals. However, as
he did not agree with the first part of the statement, he did not
rely on the second.
He concluded by noting that anti-discrimination statutes are to be
construed liberally in order to achieve their intended purpose.
"New York City law is intended to bar all forms of discrimination
in the workplace and to be broadly applied. The creation of a
hostile work environment as a result of derogatory comments
relating to the fact that as a result of an operation an employee
changed his or her sexual status, creates discrimination based on
`sex,' just as comments would based on secondary sexual
characteristics of a person. Thus, an employer who harasses an
employee because the person, as a resulting of surgery and hormone
treatments, is now of a different sex has violated our City
prohibition against discrimination based on sex." Thus the motion
to dismiss was denied. P.T.
N.Y. Court Grants Limited Name Change for Pre-Operative Transsexual
N.Y. City Civil Court Judge Lucindo Suarez (Bronx County) granted
a legal change of name in a much-litigated application brought by
William Rodriguez Rivera. Matter of Rivera, NYLJ, 3/10/95, p. 30,
col. 3. Rivera, who sought to change her name to Veronica,
originally filed a petition in Queens County, where it was denied
by Judge Nathan L. Berke, who found that "the change of name from
a `male' name to a `female' name would be fraught with danger of
deception and confusion and contrary to the public interest." At
the time, Rivera had not undergone sex-reassignment surgery or full
hormonal treatment. Rivera filed again in Queens County, and was
again refused, this time on grounds that her papers were "defective
and not in proper form." Two years later, Rivera filed a new
petition in Bronx County, but the petition was denied as
"premature" by Judge Suarez.
The fourth time was the charm, for Judge Suarez, who seemed more
moved by Rivera's "tenacity" than anything else, decided to grant
the petition, even though the application made no allegation that
Rivera had undergone sex reassignment surgery. "The prevailing
psychiatric evaluation is that petitioner is a transsexual whose
behavior, mannerisms and appearance are feminine, and that he is
confident about his sexuality and choice of female gender. Dr.
Benito B. Kish states that petitioner has undergone hormonal
therapy for over 15 years, and that petitioner was born having both
female and male characteristics. A psychotherapist states that
petitioner is seen on a weekly basis and is under medication.
Although the documentation in support leads to the conclusion that
petitioner's comportment and sex orientation is that of a female,
there is no claim that petitioner has in fact undergone a sex
operation. However, upon the review of the corroborating competent
medical affidavits, and the totality of the circumstances herein,
including petitioner's tenacity in the pursuit of this name change,
it is Ordered that petitioner's application to change his name from
William Rodriguez Rivera to Veronica Rodriguez is granted solely
upon the condition that petition not use or rely upon this order as
any evidence whatsoever or judicial determination that the sex of
petitioner has been changed anatomically." A.S.L.
Wisconsin Court Rejects Battering Defense in Murder Case
The Wisconsin Court of Appeals refused to set aside a 35-year
sentence imposed after a guilty plea to felony murder, where the
defendant argued that his homosexual relationship with the victim
extending over 7 years was "marked by incidents of violence by the
victim toward the defendant." State v. Fitzpatrick, 1995 WL 104584
(March 14). Defendant Edward C. Fitzpatrick beat the victim to
death with a baseball bat and then robbed him "in an apparent
attempt to cover up the murder." In appealing the sentence,
Fitzpatrick argued that the court gave inadequate consideration to
the abusive nature of the relationship, and gave undue weight to
testimony of the victim's relatives, which Fitzpatrick claimed was
"directed toward the goal of exacting a heavy price" from
Fitzpatrick to expiate their guilt over having ostracized their gay
family member. Fitzpatrick also asserted ineffective assistance of
counsel, based on comments made by his attorney during the
sentencing proceeding. The court of appeals, in a per curiam
opinion, rejected the appeal, finding that Fitzpatrick's
allegations had been adequately presented in the presentencing
report, that no undue weight was given to the relatives' testimony,
and that his counsel's performance had been well within the
boundaries of reasonableness. A.S.L.
State Courts Rule in Lewdness Cases
The Texas Court of Appeals upheld the conviction of a man charged
with public lewdness in an adult movie theater in Campbell v.
State, 1995 WL 73091 (Feb. 23). The court held that a rational
fact finder could have believed the police officer's version of the
story (that the defendant groped himself and the officer) over the
defendant's version (that the police officer had identified the
wrong person in the dark theater, or that the defendant had
accidentally bumped up against the officer). The court also
rejected Campbell's arguments that the statute prohibited only
heterosexual contact, and that there was insufficient evidence that
he acted with the requisite intent "to arouse or gratify sexual
desire." The officer testified, based on his training and
experience, that the defendant was sexually gratified. The court
upheld Campbell's 90 day sentence, probation, and fine. D.W.
N.Y. City Criminal Court Judge Arlene Goldberg ruled in People v.
Davis, NYLJ, March 2, p. 28 (N.Y.Co.), that a man charged with
exposing his genitals in a restroom in the Port Authority of New
York Bus Terminal could be tried for public lewdness. Rejecting a
motion to dismiss based on People v. McNamara, 78 N.Y.2d 626
(1991), in which the court ordered dismissal of public lewdness
charges against a couple who were apprehended having sex in a
parked car late at night, and U.S. v. Hoffmann, 93 Cr. 948 (NYLJ,
Oct. 20, 1994, p.1), dismissing lewdness charges against a gay man
masturbating in the bushes in a federal park, Goldberg found that
the complaint adequately alleged that defendant's conduct was open
to public view, presenting facts distinguishable from the cited
precedents. A.S.L.
Other State Litigation Notes
The Connecticut Supreme Court upheld the conviction of Kathalenn
Linares for staging a lesbian and gay rights demonstration from the
balcony of the Hall of the House of Representatives during former
Governor William A. O'Neill's annual budget address to the General
Assembly. State v. Linares, 232 Conn.App. 345, 1995 WL 107492
(March 14). According to the opinion, Linares was one of several
demonstrators who hung a gay rights banner from the balcony and
began chanting "Gay rights, lesbian rights" repeatedly to disrupt
O'Neill's speech until state troopers removed them from the balcony
and took down their banner. In an opinion by Justice Katz, the
court rejected Linares' argument that the statutes under which she
was convicted and fined $90 were unconstitutionally vague or
improperly restricted protected speech. The statutes in question
prohibited noisy disruptions of the state's legislative activities.
The court held that it was within the power of the state to
regulate the time, place and manner of political demonstrations.
The lengthy opinion sets forth a detailed analysis of the first
amendment issues raised by the case. The Connecticut Civil
Liberties Union participated as an amicus in the case in support of
Linares' claims. A.S.L.
The Oregon Court of Appeals reconsidered and affirmed the sentence
of a defendant who had pled guilty to 5 counts of sodomy with a
minor. State v. Fennern, 133 Or. App. 199, 1995 WL 73705 (Feb.
22). The trial court had apparently imposed an enhanced sentence
under a statutory sentencing scheme based on a finding of permanent
psychological injury to the complainant and a degree of harm
greater than typical for the offense. Fennern argued that this
departure sentence was not supported by the record and that the
sentencing guidelines were unconstitutionally vague and overbroad.
After noting Fennern's argument that the only evidence supporting
the court's finding was "the victim's statement that he views
everyone he now meets as gay or lesbian," and with virtually no
further discussion, the court found that the trial court could have
inferred permanent injury from the presentence investigation which
showed that the complainant's "entire attitude toward adults" had
changed because of defendant's acts. The court did not reach the
constitutional argument. D.W. & A.S.L.
In an unreported decision, Santa Clara County (California) Superior
Court Judge Peter Stone ruled that Stanford University's speech
code was "unconstitutionally broad and based on content," according
to The New York Times (Feb. 29). Stanford sought to defend the
code in a suit brought by a group of students by arguing that it
only proscribed "fighting words," but evidently the code was
inadequate under the Supreme Court's R.A.V. case, which disapproved
outlawing hate speech that is directed only at certain groups.
Grounds for objection to speech under the Stanford code included
sexual orientation. A.S.L.
The Boy Scouts of America and its local area councils are not
"public accommodations" subject to anti-discrimination requirements
of state law, according to the Kansas Supreme Court's ruling in
Seabourn v. Coronado Area Council, 1995 WL 10128 (March 10). The
court was ruling on a case where the plaintiff had been denied
participation as a Scout leader due to his refusal to "subscribe to
the religious principles of the organization." This issue is
undergoing litigation in several jurisdictions, in which some of
the cases involve the Scouts' anti-gay policies. A.S.L.
William R. Grippo, Jr., and Brett S. Kleinberg, both residents of
Somerset County, N.J., are suing Jukebox Eddie's, a bar in Green
Brook, alleging sex discrimination because a bouncer ejected them
for dancing together. Although the plaintiffs are not gay, they
claim they were ejected because they were perceived as being gay.
They also claimed that the bar allowed women but not men to dance
together. The bouncer physically pushed the men off the dance
floor and out of the bar, according to their complaint in New
Jersey Superior Court seeking compensatory and punitive damages.
Bergen Record (March 16). A.S.L.
A Rock County, Wisconsin, Circuit Court jury awarded $710,000
damages to a Janesville, Wisconsin, woman who claimed she was lured
into a lesbian relationship by a psychiatric nurse at Mercy
Hospital. The Jane Doe plaintiff asserted that the resulting
relationship led to the loss of her husband and children and
various economic losses. The jury found that the hospital was
negligent and the nurse was "outrageously negligent." The hospital
vowed to appeal its share of the damage award, 25%. The jury
determined that the nurse, Shirley Connelly, should be solely
responsible for the punitive damage portion of the award.
Wisconsin State Journal (March 17).
On March 21, San Francisco Superior Court Judge William Cahill
dismissed a religious discrimination lawsuit that was filed by Rev.
Eugene Lumpkin against Mayor Frank Jordan. Lumpkin was forced to
resign as a human rights commissioner after making homophobic
remarks. He had sued Mayor Jordan both in federal and state court.
The federal suit was dismissed in November. San Francisco
Chronicle (March 22). A.S.L.
Law & Society Notes
Philadelphia, Pennsylvania, Mayor Edward G. Rendell has issued a
policy statement barring harassment in city government against
municipal employees, job applicants, or members of the public. The
statement reaffirms the city's policy that "harassment,
intimidation, retaliation, or abuse of city employees or applicants
for city employment because of race, color, creed, disability, age,
national origin, sex, sexual orientation, or perception of sexual
orientation" are prohibited, according to a March 20 report in BNA
Daily Labor Report No. 53, at A-5.
A study by the General Accounting Office found that federal
government operations requiring security clearances were no longer
inquiring about the sexual orientation or sexual practices of
applicants. In most instances, this change was based on written
directives. In the case of the Defense Department, it was based on
a change in practice without formal written directives. However,
all the surveyed agencies indicated that they would be concerned
about any sexual activities that might subject the applicant to
blackmail, such as concealed homosexuality; they just no longer
considered homosexuality, as such, necessarily to fall into that
category. The Defense Department, for example, now considers
homosexuality for civilian employees and contractor employees to be
a problem for security clearances only if it is concealed from co-
workers and family members. Copies of the GAO study, titled
"Consideration of Sexual Orientation in the Clearance Process" are
available from the U.S. G.A.O. (GAO/NSIAD-95-21), P.O. Box 6015,
Gaithersburg, MD 20884-6015. (see BNA Daily Labor Report No. 59,
3/28/95, p. A-4).
The Rhode Island House of Representatives voted 57-41 on March 29
in favor of 95-H 6678, a bill to add "sexual orientation" to the
state's law banning discrimination in employment, housing, credit
and public accommodations. The Senate had passed a similar bill in
its 1993 session by a vote of 30-17, so it seemed likely that the
bill will achieve legislative passage this year. Republican
Governor Lincoln C. Almond has already told the local newspapers
that he will sign the measure if it passes. This would make Rhode
Island the 9th state to ban sexual orientation discrimination. * *
* The Maryland House of Representatives Committee on Commerce and
Government Matters voted 12-7 on March 20 to kill a bill that would
have prohibited discrimination in housing, employment and public
accommodations based on sexual orientation. In prior years, the
bill had been sent to the Judiciary Committee, which killed it for
each of the past three years. San Francisco Sentinel, March 22. *
* * The New York State Assembly passed a sexual orientation
discrimination bill for the third consecutive year on March 27 by
a vote of 88-57, but passage by the Republican-controlled State
Senate is not deemed likely in this session. * * * In an
unprecedented move, the Cincinnati City Council voted March 8 to
repeal the provisions banning sexual orientation in the city's
human rights ordinance, which it had enacted just a few years ago.
Councilmember Dwight Tillery, whose change of position led to the
5-4 repeal vote, claimed he was just responding to the wishes of
constituents who had voted in support of Measure 3, an anti-gay
ballot initiative. Ironically, the 6th Circuit Court of Appeals
was hearing oral argument on the constitutionality of Measure 3
while the Council was debating the repeal. * * * The Louisville,
Kentucky, Board of Aldermen defeated various gay rights proposals
at a March 28 meeting.
Do gays have political power, ask judges in some equal protection
cases? A late March incident in Montana may provide ammunition for
those who argue that gays are a politically powerful group. The
legislature, debating a measure for registration of those convicted
of sex crimes, decided to include those convicted of consensual
sodomy. Gay lobbyists were able to orchestrate such a large and
fast national uproar that the state senate immediately reversed
itself and voted to delete the contested provision, after the
governor announced that the provision might lead to a veto of the
measure. Of course, gays have been totally unsuccessful in getting
the legislature to repeal the consensual sodomy law, or to pass a
gay rights law.
California Governor Pete Wilson overruled a policy on adoptions
enacted several months ago by the state's Social Services Director
Eloise Anderson, under which same-sex couples and unmarried persons
would be deemed suitable adoptive parents by the state. Revocation
of the policy leaves in place a policy adopted by the prior
administration, which barred unmarried couple adoptions and stated
a preference for married couples as adoptive parents. Sacramento
Bee, March 12.
The New York City Gay and Lesbian Anti-Violence Project, in
coordination with anti-violence groups around the country, released
1994 data indicating a slight increase in anti-gay violence
nationwide, although reported incidents were down in some major
cities.
Gays aren't the only folks protected from discrimination by sexual
orientation laws. The Kansas City Star (March 5) reported that The
Edge, a gay club, was warned against having a "gay night" at which
heterosexuals would be excluded, as a potential violation of the
city's sexual orientation discrimination law. The club sought to
have a "gay night" on Wednesday nights, "our deadest night," as a
way to increase patronage. The trendy club evidently attracts lots
of alleged heterosexuals on its busy nights.
The Fairfax County, Virginia, School Board rejected an attempt by
so-called "family values" advocates to gut the sex education
program. On March 9, the board voted to maintain the existing
program, which had been criticized for its discussion of birth
control, AIDS and homosexuality in non-judgmental terms.
Washington Post (March 10).
The nation's media sparked debates about societal homophobia by its
reporting on the murder of Scott Amedure after the taping of a
segment of the "Jenny Jones Show," a television program, in which
Amedure revealed his crush on John Schmitz, a self-confessed
heterosexual, who has been indicted for murdering Amedure a few
days after the show was taped. Schmitz claimed he was led to
believe that his "secret admirer" on the program was a woman friend
who had previously introduced him to Amedure at a social occasion.
The immediate press comment blamed to show's producers for setting
up a situation where Schmitz would be provoked into violence. The
second wave of media comment, dominated by gay spokespersons,
pointed out the societal homophobia in assuming that violence was
an expected response by a heterosexual man to learning that a gay
man was attracted to him. A.S.L.
International Notes
The Ontario, Canada, Human Rights Commission has reportedly fined
Hamilton, Ontario, Mayor Bob Morrow $5,000 (Canadian) for refusing
to issue a Gay Pride Day Proclamation in 1991, finding that this
violated the rights of one Joe Oliver, a gay man who filed a
complaint with the Commission and will be entitled to collect the
fine. Morrow is personally liable because issuing such
proclamations is a discretionary mayoral function.
A Toronto gay newspaper reported March 17 that a Canadian judge,
Barbara Reed, ruled unconstitutional Canadian penal code provisions
setting a higher age of consent for anal sex (18 years) than for
oral or vaginal sex (14 years). The ruling came in a deportation
case involving a U.S. citizen, Henry Halm, who fled to Canada after
being convicted in New York of sodomy with teenagers in the 14-16
age range. Halm was battling deportation by arguing that his
actions would not be unlawful in Canada, but government attorneys
countered with the 18 year old age of consent. Reed found there
was no rational basis for the different ages. Halm, who was
arrested by Canadian officials in 1993, is still subject to
deportation for overstaying his visa, according to this news
report.
Associated Press reported that the European Court of Justice is
considering a claim by a postoperative transsexual that she
suffered unlawful employment discrimination by a local government
body in England. P v. Cornwall County Council. An industrial
tribunal had ruled against the employee, but referred the matter to
the European Court for a determination whether the defendant's
action violated European community laws against discrimination.
Arizona Republic (March 24).
The Council of Ministers in Cyprus has agreed to propose amending
the sodomy laws to decriminalize consensual homosexual conduct by
men over age 18. The final decision on the proposal will be up to
the House of Representatives. The sodomy law does not apply to
women. Washington Blade (March 10).
OutRage, a militant gay rights group in London, stirred the pot by
outing top officials of the Church of England, sparking some
bishops to come clean and the top Roman Catholic official in the
country, Cardinal Hume, to issue a statement saying, "Love between
two persons, whether of the same sex or of a different sex, is to
be treasured and respected." The Anglican officials also decided
to reconsider the Church's current position on homosexuality among
clergy. Some outing works, it seems. A.S.L.
Professional Notes
The Honorable Deborah A. Batts, the first openly lesbian or gay
attorney to be confirmed by the U.S. Senate as a federal district
judge (and a member of LeGaL-GNY), was the keynote speaker for the
15th Anniversary Dinner of Bay Area Lawyers for Individual Freedom,
held Feb. 16 at the Embarcadero Hyatt Regency Hotel in San
Francisco. More than 1,000 persons attended the event, at which
BALIF also honored Lyon-Martin Women's Health Services (Community
Service Award), the Republic of South Africa (Civil Rights Award,
for being the first country to ban sexual orientation
discrimination in its constitution), and the Honorable Herbert
Donaldson, an openly gay judge and community leader (Lifetime
Achievement Award). (San Francisco Sentinel, Feb. 22.)
The Honorable Karen Burstein, former New York City Family Court
judge and candidate for the position of New York State Attorney
General as nominee of the Democratic Party in the 1994 general
elections was keynote speaker for the Ohio Human Rights Bar
Association's annual dinner in Columbus on March 18. OHRBA
presented a continuing legal education program on the day of the
dinner.
Dr. M. L. (Hank) Henry, a longtime LeGaL member and a major figure
in the New York legal community, has died from AIDS. Although he
was not a lawyer, Dr. Henry was an expert on the court system,
having worked in an administrative capacity (including as executive
director for ten years) at the Fund for Modern Courts, a leading
court reform organization. He also took an important behind-the-
scenes role in encouraging lesbian and gay lawyers to apply for
judicial appointments, and in encouraging administrators and
politicians to advance openly lesbian and gay judicial candidates.
A.S.L.
AIDS AND RELATED LEGAL NEWS BRIEFS
Federal Court Orders Dentist to Treat People With HIV
In an important case of first impression under the Americans With
Disabilities Act (ADA), U.S. District Judge Duval granted summary
judgment for the government and ordered dentist Drew B. Morvant to
cease his policy of referring all known HIV+ patients to other
dentists. U.S. v. Morvant, 1995 WL 131093 (E.D.La., March 22).
This decision appears to be the first ruling on the merits in a
public accommodations claim involving a private dental office under
the ADA, and the opinion includes a careful analysis of the various
affirmative defenses offered by Dr. Morvant. Duval also denied
Morvant's motion to dismiss, premised on his constitutional attack
on the ADA's application to his practice.
The case arose from incidents involving two of Morvant's patients,
who were refused treatment after he learned that they were HIV+.
Morvant referred them to another dentist, claiming he was not a
specialist in treating HIV+ people and needed to make the referrals
for the safety of himself, his staff and his patients. In both
cases, the patients were seeking routine dental services. In a
previously published opinion, Duval held that Morvant's office was
a "public accommodation" under the ADA, 843 F.Supp. 1092 (E.D.La.
1994). Noting that ADA regulations specify that HIV+ status is a
statutory disability, Duval found that the government easily made
out a prima facie case of discrimination, leaving the main issue as
whether Morvant had adequately made out an affirmative defense.
Relying on affidavits by noted dental authorities submitted by the
government, and noting Morvant's failure to present any expert
evidence other than his own assertions of ignorance and
incompetence, Duval concluded that Morvant failed to show either
that his referrals were appropriate or that treatment of the
patients in his office presented a significant risk of danger. The
experts all agreed that universal precautions in dental offices
virtually eliminate the risk of transmission to the dentist, his
staff, or other patients. Furthermore, no specialized training or
knowledge is necessary to provide routine dental services to HIV+
patients. The dentist to whom Morvant made referrals was not an
"AIDS specialist," merely a regular dentist who did not
discriminate against PWA's.
Considering Morvant's cross-motion to dismiss on constitutional
grounds, Duval found that the appropriate standard of judicial
review was the rationality test, and that ADA's public
accommodations provisions easily met the test, both with respect to
determining that Congress had jurisdiction over private dental
offices and that the substantive requirement of non-discrimination
was rational.
In addition to ordering Morvant not to discriminate, to post
appropriate notices, and to have himself and his staff "undergo
training concerning HIV and the practice of dentistry," Duval set
a May hearing date to determine appropriate damages for the two
patients. (Infuriatingly, the opinion as retrieved from Westlaw
bears the legend "Not reported in F.Supp." This is a crucially
important decision, and it is shocking that it will not be
officially published.) A.S.L.
7th Circuit Overturns Class Certification in Hemophilia AIDS Case
In an opinion by Chief Judge Richard Posner, the U.S. Court of
Appeals, 7th Circuit, issued a writ of mandamus to District Judge
Grady, directing him to decertify a nationwide class of
hemophiliacs in claims against manufacturers of blood clotting
medication arising from HIV transmission. In the Matter of Rhone-
Poulenc Rorer, Inc., et al., 1995 WL 116307 (March 16). About 300
lawsuits, involving about 400 plaintiffs, have been filed against
manufacturers asserting various grounds of liability. Forty
percent of the cases were filed in federal courts under diversity
jurisdiction, and were consolidated by the panel on multidistrict
litigation for joint discovery in the Northern District of
Illinois. On motion by some of the plaintiffs, Judge Grady had
refused to certify a nationwide class for purposes of an ultimate,
binding determination of liability, but he agreed to certify a
nationwide class in order to have a jury decide certain issues that
Grady considered common to all the cases. Since a class
certification is not a final judgment subject to appeal, the
manufacturers were left to the device of seeking a writ of mandamus
to obtain judicial review of this decision.
The court split over whether it was appropriate to issue the writ.
Judge Posner found that this case presented the rare circumstance
where the district judge clearly made an improper "usurpation" of
judicial power. Pointing out that in diversity cases, each
plaintiff's claim would have to be determined under applicable
state substantive law, Posner asserted that it was inappropriate to
have one federal jury (six jurors and two alternates) decide
alleged common issues under some sort of hybrid charge attempting
to summarize the substantive tort law of numerous states. He also
noted that the outcome of such a jury deliberation could ultimately
threaten the entire blood-clotting medication industry with
enormous financial liability in one fell swoop; to date, almost all
litigation against manufacturers on an individual plaintiff basis
has been unsuccessful, but if the class action succeeds, pressure
on the defendants to settle individual claims could impose over
$100 billion in liability.
Circuit Judge Rovner dissented, arguing that the drastic remedy of
mandamus should not be used, it being sufficient that a final
judgment in favor of the named plaintiffs would be subject to
direct judicial review. A.S.L.
Ninth Circuit Forces Prisoner To Participate In HIV Transmission
Study
In Stanley v. Swinson, 1995 WL 46181 (Feb. 6), the 9th Circuit
refused to enjoin defendant, a federal prison warden, from forcing
plaintiff, a prison inmate, to participate in a study of prison HIV
transmission. Stanley, a federal prisoner, brought an action under
42 U.S.C. sec. 1983, claiming that the forced HIV testing violated
federal regulations prohibiting research on prisoners without their
consent, as well as his 4th and 5th Amendment rights.
The Bureau of Prison's HIV-testing policy required that all
prisoners committed between January 1, 1990, and February 16, 1990,
be tested for HIV. All inmates who tested negative would be
required to re-test every six months. Stanley took the initial
test in February, 1990, and continued to take HIV tests until the
summer of 1992. Although Justice Department regulations in effect
at the time (since amended) required informed consent for all
prisoner research, the Bureau maintained that its program could not
be defined as "research." The court, however, concluded that the
Bureau's HIV transmission study fell easily under the threshold
definition of 28 C.F.R. Part 512, which describes research as "the
systematic collection of information about or from former or
present inmates or employees, analysis of the information, and
preparation of a report of findings." Further, the court stated
that the Bureau's policy also falls under the amended definition of
research as "a systematic investigation, including research,
development, testing and evaluation, designed to develop or
contribute to generalizable knowledge." The court concluded that
plaintiff Stanley raised a significant legal question as to whether
the new testing policy is covered by the informed consent
provisions.
As for plaintiff's constitutional claims, the court looked to the
standard articulated in Turner v. Safley, 482 U.S. 78, 89 (1987).
According to the Supreme Court, "when a prison regulation impinges
on inmates' constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests." In
determining the reasonableness of a regulation, four factors must
be considered: (1) there must be a valid, rational connection
between the prison regulation and the legitimate governmental
interest put forward to justify it; (2) the court should determine
whether there are alternative means available to inmates to
exercise the right; (3) the court is to consider the impact that
accommodation of the asserted right will have on guards, other
inmates, and on the allocation of prison resources; and (4) the
court should assess whether there are ready alternatives to the
prison regulation. The court held that Stanley had raised a
significant legal question as to whether the research conducted by
the Bureau of Prisons has "a legitimate penological objective."
However, to obtain preliminary injunctive relief, Stanley needed to
demonstrate either (1) a combination of probable success and the
possibility of irreparable injury or (2) that serious legal
questions were raised and the balance of hardships tipped sharply
in his favor. Although the court concluded that Stanley raised
serious legal questions and may have met the prong of probability
of success, he had failed to meet any of the hardship prongs.
According to the court, although Stanley had not shown how he would
be irreparably harmed by having a blood sample taken every six
months, the prison study might be irreparably harmed if it were
forced to interrupt its research. Therefore, although noting that
"[o]n both the regulatory and the constitutional issues, Stanley
has raised serious questions," because <19>he has not shown
irreparable injury; nor has he shown that the balance of hardships
tips in his favor," the Ninth Circuit affirmed the District Court's
denial of a preliminary injunction. It further directed, however,
that plaintiff be appointed a lawyer so as "greatly to assist the
court in ruling on the merits. We also suggest that the Government
develop a more complete record of its penological interest with
respect" to the HIV testing program. C.B.R.
Jury Verdict for Drug Companies Set Aside by 7th Circuit
The 7th Circuit Court of Appeals set aside a jury verdict and
ordered a new trial on a claim that various pharmaceutical
companies bear legal liability for the death from AIDS of a
hemophiliac. Gruca v. Alpha Therapeutic Corporation, 1995 WL
124628 (March 24). At the trial before Judge Grady, the surviving
spouse and children of Stephen Poole sought to establish that re-
exposure to various strains of HIV through different clotting
medications had exacerbated Poole's original HIV infection. The
trial judge directed a verdict against the plaintiffs on this
theory of "antigenic stimulation" and also overruled the
plaintiffs' objection to comments in one of the defendants'
surrebuttal arguments that, taken together with comments from the
judge, would suggest to the jury that principal liability for the
plaintiffs' injury would legally rest with the Food and Drug
Administration (FDA), a non-party. The court of appeals found
that, given the state of the record (including expert testimony),
there was a fact question for the jury on the possibility of
antigenic stimulation of HIV infection to produce rapid immune
system collapse. Furthermore, due to principles of sovereign
immunity, it was clear that the FDA was not subject to suit for the
particular injuries alleged in this case, so the trial judge's
comment -- "I don't know that you can't sue a government entity.
Government entities are sued all the time, and I will overrule the
objection" -- was so seriously misleading that it improperly
prejudiced the plaintiff's case. A.S.L.
Teeth of HIV-Positive Man A Deadly Weapon Says 4th Circuit
A divided panel of the 4th Circuit Court of Appeals held that an
HIV+ man who inflicts bite wounds on corrections officers can be
charged with assault with a deadly weapon. In United States v.
Sturgis, 1995 WL 81919 (Feb. 21), the defendant was preparing for
a conjugal visit with a friend in prison when, on suspicion that he
was carrying contraband, he was searched by corrections officers.
After the defendant expressed a desire to cancel the search and his
visit, an altercation arose. Officers held open his jaw to check
for contraband, and defendant inflicted severe bite wounds on the
thumb and arm, respectively, of two officers. The defendant
claimed he was acting in self-defense. One of the officer's wounds
bled profusely. At a hospital after the altercation, defendant
continued to threaten violence, saying that he would bite them and
hoped to infect the medical staff with HIV.
Judge Wilkinson, joined by Judge Hall, affirmed the jury's finding
that the defendant "intended" to harm the corrections officers by
using "a dangerous weapon," to wit, his teeth. The defendant's
"violent and aggressive" actions with the officers, his knowledge
of his HIV status and desire to infect others, and the length of
time the bites were held in place, all proved Sturgis' intent to
cause harm. The court noted that the assault statute did not
define a "dangerous weapon" and concluded that the manner in which
Sturgis used his teeth, and the potential for serious bodily harm
from infection, were sufficient to render them "dangerous weapons."
The court noted that it was proper to make a "functional inquiry
into the use of the instrument rather than a metaphysical
reflection on its nature." The court concluded by noting "at least
a substantial possibility that HIV, which causes AIDS, can be
transmitted via a human bite."
In dissent, Judge Hall took serious issue with a part of the human
anatomy being regarded as a "weapon," insisting that a weapon is an
"object or instrument" and that it "strains the boundaries of
ordinary usage" to include body parts in such a category. R.B.
The Mississippi Clarion-Ledger reported March 11 that an HIV+ man
in McComb, MS, pleaded guilty to aggravated assault in a biting
incident, was sentenced by Circuit Judge Keith Starrett to 12 years
in prison with four years suspended and eight years to serve and to
pay the victim's medical expenses. State v. Palmer. A.S.L.
State Appeals Court Upholds Attempted Murder Conviction of
Defendant Who Stabbed Victim With Syringe
The Louisiana Court of Appeals, 1st District, affirmed the
conviction of attempted 2nd degree murder of Donald Caine, who was
charged with stabbing Wanda Fitzgerald, a convenience store clerk,
with a hypodermic needle while shouting "I'll give you AIDS."
State v. Caine, 1995 WL 112045 (March 3). Fitzgerald, who tested
HIV-negative several months after the incident, testified that she
had approached Caine to tell him to leave the store because he had
previously been accused of shoplifting from that store. After
Fitzgerald told Caine to leave, he grabbed a carton of cigarettes
and she approached him, reaching out to grab them away from her.
Caine reached into his pocket and pulled out the syringe, stabbing
her and shouting. Fitzgerald called the police, who apprehended
Caine based on her description. Caine had track marks on his arms
and tested HIV-positive. Caine was convicted as a felony habitual
offender and sentence to fifty years at hard labor with credit for
time served.
On appeal, Caine argued, among other things, that the verdict was
not supported by sufficient evidence because the state failed to
show that the syringe was a dangerous weapon or was contaminated
with HIV. (The syringe was never found, and Caine was convicted
solely on the basis of testimonial evidence.) The court, in an
opinion by Judge Foil, observed that "the testimony of the victim
alone is sufficient to prove the elements of the offense."
Conviction for attempted second degree murder would require a
finding that the defendant had intent to kill, but would not,
according to the court, require a finding that the defendant would
have actually accomplished this intent.
"AIDS is a fatal disease for which no cure has been found as of the
writing of this opinion," wrote Foil. "When telling the victim
that he would give her AIDS, it could only mean that he had the
specific intent to kill her. Stabbing Fitzgerald with the needle
after making the statement that he would give her AIDS was an act
committed for the purpose of and tending directly toward the
accomplishing of killing Fitzgerald. Furthermore, although the
defendant claims that the state failed to prove that the needle was
a dangerous weapon, La.R.S. 14:27 and 14:30.1 do not require that
a defendant use a dangerous weapon in order to be found guilty of
attempted second degree murder." The court concluded that a
rational trier of fact could have concluded that the state proved
its case beyond reasonable doubt, and affirmed the conviction.
(Caine had raised other objections to the conviction, related to
his identification by various witnesses, which the court
dismissed.) A.S.L.
No Trial Delay for Sexually-Active HIV+ Serviceman
The Court of Appeals for the Armed Forces recently affirmed a
military judge's ruling, denying an HIV+ defendant's motion for
continuance so that neurological and neuropsychological testing
could be conducted. U.S. v. Price, 41 M.J. 403, 1995 WL 78207 (U.S.
Armed Forces). The defendant discovered he was HIV+ in late
February 1990. However from March 1990 until December 1990 the
defendant engaged in sexual relations with a woman without first
disclosing his status. When his commander discovered his conduct
in April 1990, the Air Force charged the defendant for violating
both military and federal law. The defense immediately requested
a sanity board hearing to determine his mental capacity and
responsibility. Since one cannot be court-martialed unless he/she
is mentally competent, to the extent that he/she understands the
nature of the proceedings or can assist in his/her own defense, the
military judge granted the request. See RCM 909(a).
The first sanity board met in June 1991 and concluded that even
though defendant suffered from depression, he was competent to
stand trial. The court-martial convened on July 5, 1991, and the
defendant pled guilty to not disclosing his HIV-status to a sex
partner. On July 8, 1991, defense counsel requested a second
sanity board, based on two factors; 1) the defendant allegedly
attempted suicide after the first sanity board, and 2) the
defendant refused to cooperate in his own defense. The military
judge granted a motion for continuance, but the second sanity board
also found the defendant competent to stand trial.
Upon reconvening, a new civilian counsel represented the defendant.
New counsel made a third request for a delay, so that neurological
and neuropsychological testing could be conducted. Since the
defendant was unable to recall events relating to the alleged
crimes, counsel argued that he was unable to assist in his own
defense. Counsel supported his request with an evaluation report
from an Air Force doctor stating, "Since the subject is known to
possess a disease process which can effect [sic] cognitive
functioning further investigation into the possibility of brain
impairment should be conducted." The doctor's report included a
recommendation for neurological and neuropsychological evaluation.
This time the military judge exercised his discretion to deny the
motion. The defense appealed, claiming that the denial was a clear
abuse of discretion.
The Court of Appeals for the Armed Forces affirmed the military
judge, holding that the defense failed to demonstrate that the
defendant was incompetent to stand trial, based on three factors.
First, two sanity boards found the defendant competent to stand
trial. Second, the military judge's own impression was that the
defendant was competent to stand trial, based on questioning the
defendant during a prior session. Finally, the court examined the
medical evaluation and found that in the same report the Air Force
doctor concluded that the defendant was "emotionally and
intellectually competent to stand trial." (The court-martial
members had sentenced defendant to a bad-conduct discharge, one-
year confinement, $300 monthly fine for six months, and reduction
in grade from Senior Airman to E-2.) K.F.
No Action for Wrongful HIV Diagnosis in Florida
The Florida Supreme Court held in R.J. v. Humana of Florida, Inc.
1995 WL 81873 (March 2), that damages for emotional harm from a
negligent HIV diagnosis "cannot be recovered without a showing of
some physical injury as a result of the misdiagnosis." The court
upheld dismissal of a complaint that alleged the misdiagnosis led
to "hypertension, pain and suffering, mental anguish, loss capacity
for the enjoyment of life, and the reasonable expense of medical
care and attention," because "these intangible, mental injuries
[were] insufficient to meet the physical injury required under
the impact rule." Finding that the impact rule served to
assure validity of claims for emotional harm, the court
rejected the plaintiff's invitation to abolish it. Nor would the
court create a limited exception in negligent HIV diagnosis cases,
because it would have a "substantial impact on many aspects of
medical care, including the cost of providing that care to the
public." Furthermore, such an exception would include all
misdiagnoses of terminal illnesses and it would be difficult to
limit speculative claims. The court permitted the plaintiff to
amend the complaint, however. The plaintiff would have to show an
impact like invasive medical treatment in order to recover for the
emotional damages. That treatment would have to be something
beyond the touching of a doctor or the taking of blood, such as the
prescription of toxic drugs like AZT. According to the
concurrence, the majority had all but adopted the "actual-injury"
rule. The concurrer reasoned that an "impact" like invasive
medical treatment extended beyond the traditional impact rule's
requirement that the impact be contemporaneous with the negligent
act, here the misdiagnosis. M.S.R.
Louisiana Appeals Court Disallows Claim On Life Insurance Policy Of
HIV+ Man, Citing Decedent's Misrepresentations
The Court of Appeals of Louisiana held that purely circumstantial
evidence tending to show that an insured knowingly made false
statements with intent to deceive is sufficient to allow a life
insurance company to defeat a beneficiary's claim to payment under
a policy secured by an individual who later died from complications
from AIDS. Hebert v. Magnolia Life Insurance Company, 1995 WL
82228 (Mar. 1). In June 1991, decedent Victoria applied for
insurance and gave negative responses to questions regarding his
HIV+ status. He also answered negatively questions involving his
contact with the medical community for diagnosis or treatment. In
a slip opinion, Judge Sullivan approved the trial court's reliance
on the apparent falsity of the responses in finding for defendant
insurance company.
Under Louisiana law, an insurance carrier must prove (1) knowing
falsity, (2) intent to deceive, and (3) material effect of risk in
defending a suit to compel payment of life insurance proceeds.
Although Magnolia Life neither conducted an independent
investigation of the insured's medical history nor required the
insured to submit to a physical examination before issuing the
$10,000 policy, it was able to rely upon information uncovered
after decedent's death in March, 1993, to show that he must have
known of his condition by the time the insurance was purchased.
Although decedent's death certificate indicated that he had AIDS
for three years, medical records from hospitals and clinics
provided no conclusive proof of his HIV+ diagnosis. The only
contemporaneous medical record introduced into evidence which
predated the application for insurance was a referral from a
hospital to a "special medicine clinic" one month before decedent's
application for insurance. The referral bore no conclusive proof
other than the notation that decedent "has been HIV+ since
November, 1990." This evidence alone was held sufficient to prove
both knowing falsity and intent to deceive.
Defendant Magnolia Life also was held to have borne its burden of
proof, both because the evidence "establishes" that decedent was
HIV+ before completing the application and because he had received
medical treatment before completing the insurance application.
Therefore, on the issue of material effect of risk by undisputed
testimony, the court was satisfied that defendant would have denied
coverage to an HIV+ applicant. Further, while Louisiana law
prohibits the introduction of an insurance application into
evidence if the insurance company cannot show that the application
was attached to the policy itself upon delivery to the insured,
defendant Magnolia Life's uncontradicted testimony that it is their
"unwavering policy" to attach an application to a policy was deemed
sufficient to affirm the trial court's judgment in favor of
defendant Magnolia Life. P.F.
Federal Court Orders Trial on Gay Prisoner Claim of "Deliberate
Indifference" in Housing with Violent HIV+ Inmate
In a rare decision upholding viability of a prisoner's 8th
Amendment claim concerning prison conditions, U.S. District Judge
Nordberg ruled in Gray v. Sheahan, 1995 WL 106333 (March 7), that
Maurice Gray, an openly gay prisoner who alleged he was bitten by
an HIV+ cellmate with known violent propensities had stated a claim
against several prison guards under 42 U.S.C. sec. 1983. While
dismissing claims against higher level prison officials, Nordberg
held that Gray was entitled to a trial on his charge that the
guards with immediate responsibility had knowingly housed him
together with his assailant with deliberate indifference to his
safety. Nordberg found that Gray met the requirement of alleging
an actual injury based on his allegation that housing him with the
violent cellmate exposed him to a pervasive risk of HIV infection.
A.S.L.
Court Denies Defendant's HIV-Test Demand in AIDS-Phobia Suit
Justice Joseph Lisa, Queens County Supreme Court, became the fourth
New York state trial judge to recognize a claim of emotional
distress for persons exposed to HIV. Brown v. New York City Health
and Hospitals Corp., NYLJ, 3/7/95, p.29. The New York Law Journal
reported that Lisa's opinion, adding a new dimension to AIDS-phobia
claims, contains the "strong suggestion that there is a one-year
maximum during which one can be frightened about the possibility of
getting AIDS." NYLJ, 3/6/95, p.1. As Lisa opined that the issue
of HIV infection can be scientifically resolved within one year of
exposure, the Law Journal took this to imply that any damages on an
AIDS-phobia claim must be limited to the fear experienced within
that period.
The Health and Hospital Corporation moved to compel the plaintiff
to take an AIDS test. The plaintiff, nurse Lillian Brown, received
a deep puncture wound when she stuck her thumb on a needle used
intravenously for an HIV+ baby. Although she took a test at the
time of her injury (results negative), she refused to take
subsequent tests because she could not cope with the knowledge that
she might be HIV+. She also stated that her experience told her
that a negative test result would not necessarily mean that she was
uninfected, as many people test negatively several times after
exposure before testing positive. She claimed that not knowing her
status allowed her to avoid the issue and go on with her life.
Justice Lisa stated that Brown had been traumatized by a "life-
threatening incident beyond the realms of ordinary human
experience," and that she now exhibits symptoms consistent with
Posttraumatic Stress Disorder. Deferring to the plaintiff's
fragile emotional state, the court denied defendant's motion for
Brown to undergo an HIV/AIDS test, stating that the test was
unnecessary for the AIDS-phobia claim to go forward. The plaintiff
contended that her Posttraumatic Stress Disorder was based on the
fear that she had contracted AIDS; she conceded that there was no
evidence that she actually had AIDS. The damages she sought, in
the eyes of the court, were for mental anguish based on her fear,
not for the actual injury of contracting AIDS.
The court found that while development rates vary from person to
person, "[b]y the passage of twelve months (from the time of
infection) all are believed to have had ample time for the body to
produce the HIV-antibody." The court then noted that the plaintiff
tested negative immediately after the incident in question,
precluding the likelihood that she had a prior, unrelated HIV
infection. Relying on the accepted scientific standard, the court
found that one can rule out the possibility of HIV infection by
continuing to test negative at periods of 3, 6, 9 and 12 months
after the possible exposure. While the plaintiff may have
contributed to her anxiety by refusing to be tested at three month
intervals, Lisa stated that the issue was for the trial court to
determine, and possibly to impose mitigation of damages at that
stage. On the motion, the court found that even if it were to
command the plaintiff to be tested, and she tested free from the
virus, that would not defeat her claim. Her suit is based on the
fear of contracting the disease and, in the court's view, she
would have lived with that fear for a measurable period of time.
Had she based her claim on actual HIV, the court stated that it
would have ordered her to be tested.
The opinion does not spell out that there is a one year cap on
claims. As Justice Lisa stated that HIV would have developed in
all bodies after a 12 month period from exposure, the Law Journal
infers that one can only be afraid of having contracted HIV for the
first year after exposure; as, presumably, after that year, one
could know one's status for certain by submitting to a test. It
will be interesting to watch whether that inference plays a part in
the case at the trial level. P.T.
11th Circuit Rules for Service Provider in AIDS Insurance Dispute
The U.S. Court of Appeals, 11th Circuit, ruled Jan. 9 in Florence
Nightingale Nursing Services, Inc. v. Blue Cross/Blue Shield of
Alabama, 41 F.3d 1476, that the administrator of a self-insured
employee benefit plan was required to pay a home nursing service
its full fee for providing services to a person with AIDS for the
last two months of his life. The administrator, Blue Cross/Blue
Shield (BC/BS), which was designated by contract with the employer
to pay out benefits under the terms of the employer's benefit plan,
took a narrow view of the contractual authorization, which covered
medical services but not custodial services. Weeks during which
the patient was receiving IV treatment were billed by the nursing
service at $47.50 an hour, but BC/BS only reimbursed at $19.00 an
hour, which it claimed was its customary rate; weeks after the IV's
were removed were billed at $42.50 an hour, but BC/BS refused to
pay for them, contending that only custodial care was going on.
The nursing service sued for payment of its bill. The trial court
determined that all the services provided by the nursing service
were covered by the benefit plan and ordered BC/BS to pay up,
although it denied a demand for attorney fees by the nursing
service. Both of these determinations were affirmed on appeal.
A.S.L.
PWA Advocates Sue New York City Over Agency Cutbacks
Advocates for people with AIDS filed suit Feb. 14 in U.S. District
Court, S.D.N.Y., charging that major cutbacks instituted by the
administration of Mayor Rudolph Giuliani in the Division of AIDS
Services violated the legal rights of PWAs in the city. Henrietta
D. v. Giuliani, No. CA 95-641. The suit alleges violations of the
Americans With Disabilities Act and other state and local laws.
Pointing out that caseloads at DAS have gone from 36 clients per
case manager to 65 clients per case manager, the plaintiffs allege
that the result has been significant, even life-threatening delays
in connecting clients with necessary services. AIDS Policy & Law
(March 24). The plaintiffs are represented by attorneys from the
HIV Law Project, Brooklyn Legal Services Corp., and Housing Works,
Inc. A.S.L.
AIDS Employment Law Notes
Gay & Lesbian Advocates & Defenders (Boston) announced a settlement
agreement in Doe v. Boston Athletic Club, C.A. No. 94-11215 (WGY)
(U.S.Dist.Ct., D.Mass.), an employment discrimination action filed
June 15 alleging a violation of the Americans With Disabilities Act
by a health club that would not let an HIV+ aerobics instructor
work unless he notified all his clients of his HIV status. The
defendant claimed it required disclosure to protect itself against
potential lawsuits from clients. GLAD asserted that as Doe
presented no risk of infection to clients, there was no basis for
the disclosure requirement. The case was settled for a monetary
payment and a commitment by the defendant to provide training to
its management on legal obligations of an employer to employees
with AIDS, HIV or other disabilities. The defendant asserts that
its willingness to make a financial settlement is solely to avoid
litigation costs, and does not admit to any liability. Doe is
represented by GLAD staff attorney Bennett H. Klein. A.S.L.
Baker & McKenzie, one of the world's largest law firms, has
abandoned its appeal of a decision by the New York State Division
of Human Rights holding that B & M violated the Human Rights Law by
discharging Geoffrey F. Bowers, an attorney with AIDS whose case
was one of those on which the film Philadelphia was based.
Cavagnuolo v. Baker & McKenzie, IB-E-D-86-115824. The law firm
negotiated a confidential settlement agreement with Bowers' estate,
under which the appeal is abandoned and the terms of agreement are
not made public. The case was one of the first high-profile AIDS
discrimination matters to be litigated to a conclusion before the
State Division of Human Rights. (Nat'l L.J., March 6.) A.S.L.
An employer must have knowledge of an employee's disability to be
liable for wrongful termination under the Americans With
Disabilities Act (ADA). Hedberg v. Indiana Bell Telephone Co.,
Inc., 1995 WL 67594 (7th Cir., Feb. 21). This seemingly obvious
statement could have great implications for people with non-obvious
disabilities such as asymptomatic people with HIV. Donald Hedberg
was diagnosed with primary amyloidosis, a disease protected by the
ADA, in September of 1992. On October 12 of that year, Indiana
Bell made the decision to terminate him as part of a `Workforce
Resizing Program,' citing certain performance problems as
justification for the termination. These performance problems
included tardiness and a lack of work ethic. One of the symptoms
of Hedberg's disease is chronic fatigue which could have explained
his performance problems. Just prior to his termination, Hedberg
informed his immediate supervisor of his illness and asked his
supervisor not to tell anyone. There was no evidence that
Hedberg's supervisor had told Indiana Bell anything about the
illness prior to the time the termination decision was made. On
these facts the district court granted summary judgment in favor of
Indiana Bell and the Court of Appeals affirmed. To people with
AIDS and others suffering from non-obvious disabling diseases, this
decision sends a strong message that the employee must be up-front
with the employer about the disability to gain the protection of
the ADA. Unfortunately, since sexual orientation discrimination is
not yet prohibited in most states, people who "come out" at work
about being HIV+ or having AIDS may face other forms discrimination
and have no redress. T.V.L.
Texas Supreme Court Holds Blood Donor Birthdate Confidential
In a case of first impression, the Texas Supreme Court unanimously
ruled in Tarrant County Hospital District v. Curry, 1995 WL 114557
(March 16), that a trial judge erred in ordering the hospital to
reveal the birth date of a blood donor in connection with a
wrongful death suit arising from a case of transfusion AIDS.
The trial court had protected the identity of the donor (who is
described by the court as "non compos mentis with active AIDS")
during the discovery process; the donor's sister was deposed as to
the circumstances of her blood donation. "The deposition testimony
and certain of her medical records suggest that Donor X knew she
was HIV-positive when she donated the blood. No names of Donor X's
husbands or relatives were used during the deposition, but the ages
of the siblings, the locations of Donor X, her doctors' names and
hospitals used, etc., were disclosed," relates the court's per
curiam opinion.
Plaintiffs sought the donor's birth date, claiming it would further
clarify the "sequences of events to tend to show that the
defendants should have discovered that Donor X was HIV-positive
when she gave blood." The defendants objected on the ground that
"a specific birth date would effectively identify Donor X." Texas
Health & Safety Code section 162.010(e) safeguards against "the
disclosure of the name of a donor or other information that could
result in the disclosure of a donor's identity." Without
explanation of its decision, the court concluded its brief opinion
as follows: "A majority of this Court holds that section 162.010(e)
clearly applies to protect the exact date of birth from disclosure
under the facts presented, and that Judge Curry's order is
therefore contrary to the statute. Without hearing argument, we
conditionally grant the writ of mandamus and direct Judge Curry not
to allow the disclosure of the birth date of Donor X." A.S.L.
New Jersey Court Finds Mandatory Testing Unconstitutional
New Jersey Superior Court Judge Jose L. Fuentes ruled March 4 that
a state law authorizing sexual assault victims to require their
accused attackers to undergo involuntary HIV testing is
unconstitutional, both as violation of privacy and as an unlawful
search and seizure. "It is difficult to imagine a search and
seizure more intrusive than forcing an individual to first submit
to the withdrawal of blood from his body, and then testing that
blood for a disease [that] subjects those who have it to widespread
and invidious discrimination." The state indicated it would appeal
the decision, which came in a case involving three teenage boys
accused of sexually molesting a 10-year old retarded girl. San
Francisco Sentinel (March 15). A.S.L.
Claim Against Blood Center Sounds in Malpractice
The Louisiana Court of Appeal, 4th Circuit, ruled March 16 in
Morgan v. Blood Center of Southeast Louisiana, 1995 WL 109669, that
a lawsuit by a 1992 transfusion recipient who contracted AIDS was
premature under the provisions of a 1990 state law that made all
claims relating to screening, procuring, processing, distributing,
transfusing or otherwise using blood for medical purposes into
malpractice claims, and subjecting them to various alternative
dispute resolution requirements prior to filing suit. A.S.L.
Florida Judge Voids Adoption by HIV+ Heterosexual Couple
Florida Circuit Judge Horace Andrews voided an adoption that had
been recommended by the Florida Department of Health and
Rehabilitative Services, solely on the ground that the adoptive
parents are both HIV+, a fact not disclosed to the judge at the
time the adoption was originally approved. AIDS Policy & Law
(March 24). The judge indicated he would not have approved the
adoption had he known this fact: "We must keep in mind that no
persons have a `right' . . . to become adoptive parents," he said.
Instead, the child will be adopted by the father of the male member
of the HIV+ couple. A.S.L.
AIDS New York State Litigation Notes
The N.Y. Appellate Division, 1st Dept., found that the trial court
had improperly deemed an HIV-transfusion complaint to be amended to
add a fraud claim in order to save it from being time-barred.
Monaco v. N.Y.U. Medical Center, 1995 WL 99524 (March 7). The
plaintiff claimed she was told by a hospital attendant prior to her
1982 surgery that no blood transfusion would be needed, in response
to her statement that she could arrange for relatives to donate
blood if necessary. In the event, she received 29 pints of blood
and, she alleges, HIV, which was not discovered until ten years
later. The trial court dismissed all claims against the doctors
and the hospital, but sua sponte announced that the complaint was
amended to include a fraud claim. The appeals court found that the
fraud claim would also be time-barred, but also was not well
pleaded because it did not plead the requisite knowledge on the
part of any named defendant. Thus, the trial judge abused his
discretion by attempting to revive the plaintiff's claim in this
way. A.S.L.
The N.Y. Appellate Division, 3rd Department, rejected an attempt by
a man who pleaded guilty to murder to have his 20 years to life
sentence set aside on the ground that he is HIV+. People v.
Shuman, 1995 WL 122187 (March 23). Rejecting the argument that
Shuman's guilty plea was involuntary because, he argued, he wanted
to avoid a trial so that his son would not be stigmatized when
information about Shuman's HIV status became public, the court
asserted that a review of the minutes revealed that "the plea was
knowingly, intelligently and voluntarily made." In light of the
nature of the crime, the court found the sentence acceptable.
A.S.L.
N.Y. Supreme Court Justice Price dismissed an indictment for third
degree sale of a controlled substance against an individual "in the
final stages of terminal HIV disease." People v. Redondo (N.Y.
County), March 6, N.Y.L.J., p. 30. Price dismissed the cause "in
the interests of justice" since the defendant's "deteriorating
mental condition" rendered him unable to "assist in his own
defense." Sentencing the defendant would not "protect society from
future crimes" or serve retributive functions since he was likely
not to survive his illness. Finally, public confidence in the
judiciary would not be diminished by treating "exceptional
situations with compassion and understanding." The court therefore
found that the case presented "a truly compelling factor warranting
dismissal" pursuant to CPLR Sec. 210,40[1]. R.B.
Acting N.Y. Supreme Court Justice Louis York ruled in Weiner v.
Lenox Hill Hospital, NYLJ, 3/29/95, p. 30 (N.Y.Co.), that an action
against the hospital by the survivors of a transfusion recipient
who died from AIDS was not governed by the malpractice statute of
limitations and accompanying malpractice procedural requirements,
since the claim amounted to a negligence claim that did not require
expert medical testimony for its resolution. Plaintiffs were not
challenging the decision to give the decedent a transfusion, or the
manner in which the transfusion was administered, but rather the
hospital's blood collection and screening policies. Ruling on
discovery issues, Justice York held that the hospital was not
required to reveal the number of claims or amounts paid out under
its liability insurance policies. Strictly construing a discovery
statute, York found that the hospital had complied adequately by
sending the plaintiffs a copy of its liability policy. A.S.L.
AIDS Law & Society Notes
The New York University Law School has barred Baker & McKenzie,
reputedly the world's largest law firm, from recruiting on campus
this year in light of the firm's abandonment of its appeal in the
case of Bowers v. Baker & McKenzie, a case in which the New York
State Division of Human Rights held that the firm violated the New
York Human Rights Act when it discharged associate Geoffrey Bowers,
a person with AIDS. The Division found non-credible the firm's
position that it was unaware of Bowers' medical condition when he
was discharged. The firm settled the case with Bowers' estate for
an undisclosed amount. Prof. Guy Maxfield, chair of the law
school's placement committee, said, "Since we will never have a
court decision, the only thing we had to go on was the
administrative tribunal's decision." The committee consulted the
school's gay, lesbian and bisexual student association, which had
filed the complaint against the law firm, before making its
decision. New York Law Journal, March 14, p. 1.
The Equal Employment Opportunity Commission, charged with
interpretation and enforcement of the Americans With Disabilities
Act, issued a 60-page document on March 15, intended to comprise a
new section in the EEOC Compliance Manual, defining the term
"disability" as it is used in the Americans With Disabilities Act.
"The legislative history of the ADA expressly provides that
infection with the Human Immunodeficiency Virus (HIV) is an
impairment under the Act," EEOC notes, and also cites court
decisions and legislative history to support the proposition that
"asymptomatic HIV infection" also constitutes and covered
disability. Finally, EEOC points out that ADA also protects
"persons who have no actual physical or mental impairments but
nonetheless are treated as having substantially limiting
impairments. For example, an individual who is rejected for
employment because the employer erroneously believes that the
individual is infected with [HIV] is an individual with a
disability. Even thought the individual has no impairment, (s)he
is regarded as having a substantially limiting impairment." See
BNA Daily Labor Report No. 51, 3/16/95, at E-1.
Although the Clinton Administration has sought to fund AIDS
programs at the same or higher levels for the next fiscal year, the
House of Representatives, looking for places to cut the 1995 fiscal
year budget in order to cut the deficit and lay the groundwork for
future tax cuts, voted 227-200 to approve budget rescissions that
will severely cut various programs, including Housing Opportunities
for People With AIDS (HOPWA), a major program funding shelter for
homeless PWAs.
A California trial jury acquitted members of the Alameda County
(California) Exchange of charges of violating the state's law
banning distribution of hypodermic works without a prescription on
March 9. A spokesperson for the group said that they would launch
a court action to seek declaratory relief based on a "necessity
defense" in order to allow the program to continue without
interference by local law enforcement authorities. San Francisco
Sentinel (March 15). A.S.L.
ANNOUNCEMENTS
Professor Louis Crew of Rutgers University, Newark, has started an
e-mail directory of lesbian and gay scholars, which has more than
500 listings. Copies are sent to those listed, with updates as new
persons are listed. Crew maintains an e-mail address to which
scholars can post notices to the entire group, but this is not an
on-line discussion group. Lesbian/gay scholars interested in being
listed should e-mail standard directory information to
lcrew@andromeda.rutgers.edu. Include name, institutional
affiliation, e-mail address, snail mail address, phone and fax
numbers, citations of recent publications, descriptions of ongoing
projects, and indicate whether persons in the directory have your
permission to share your listing with others for scholarly purposes
without contacting you first. Do not send directory submissions by
snail mail.
An Internet listserver, called American Network of Gay and Lesbian
Law Students, has been created as an information network for
communication. To subscribe, send a message to:
majordomo@lists.stanford.edu. In the body of the message, type:
subscribe angles youraddress@anywhere.anyplace (e.g., subscribe
angles john@university.edu). By return e-mail subscribers will
receive information about how to post messages or unsubscribe.
Gay & Lesbian Advocates & Defenders (GLAD), a public interest legal
organization, is looking for a full-time Executive Director. GLAD
litigates precedent-setting cases on sexual orientation and
HIV/AIDS issues throughout New England and provides public
education, information, and referral services nationwide.
Candidates must have substantial and successful fundraising,
development and public relations experience, the ability to
understand and articulate litigation and policy issues to a broad
audience, the ability to supervise an internal staff of nine
(including two full-time attorneys) and to work cooperatively with
the Board of Directors, attorneys, and other volunteers.
Candidates must also be able to provide the vision, leadership and
pragmatism necessary to build upon GLAD's 17 years of successful
non-profit operation while, at the same time, overseeing the
organizational development necessary to accomplish substantial
growth. J.D. preferred. Send confidential resume with cover
letter by May 8 to: Search Committee, GLAD, P.O. Box 218, Boston,
MA 02112. (Text submitted by GLAD)
The American Civil Liberties Union of Illinois seeks an attorney
with substantial litigation experience to be Director of its Gay &
Lesbian Rights Project and AIDS and Civil Liberties Project.
Litigation responsibilities include direct representation and
acting as resource for cooperating attorneys in significant lesbian
and gay rights and HIV cases. Attorneys also actively participate
in our legislative and public education programs. Salary
commensurate with experience. Excellent benefits. The ACLU of
Illinois is an equal opportunity - affirmative action employer.
Send resume, law school transcript and writing sample to Harvey
Grossman, ACLU, 203 N. LaSalle St., Suite 1405, Chicago, IL 60601.
(Text submitted by ACLU of Illinois)
The Gay & Lesbian Alliance Against Defamation announces a paid,
full-time internship based on Portland, Oregon for the summer of
1995. Applicants must be enrolled as a full time graduate or
undergraduate student. The intern will assist GLAAD's National
Field Office with national chapter outreach and development,
particularly targeting cities threatened by anti-gay ballot
initiatives. Resumes and cover letters should be addressed to
Summer Internship, GLAAD NFO, 1130 S.W. Morrison, Suite 607,
Portland, OR 97205, by April 30th. For more information, contact
Donna Red Wing at 503-224-5285.
Pennsylvania State University (University Park, PA) will host a
conference on "Lesbian, Gay, and Bisexual Identities and the
Family: Psychological Perspectives" on June 2-4, 1995. For
information on program content, contact Dr. Anthony R. D'Augelli,
814-865-1447; for registration information, contact Chuck Wilson at
814-863-5130.
Change of Address for Queerlaw listserve on Internet: To subscribe,
send "subscribe queerlaw" message to majordomo@abacus.oxy.edu. To
post messages if you are a subscriber, address them to
queerlaw@abacus.oxy.edu.
Several local organizations of lesbian and gay law enforcement and
criminal justice system officials have formed LEGAL International
to serve as a clearinghouse for information of concern to local
groups and to provide organizational support for annual conference
of gay, lesbian and bisexual police professionals. The new
organization can be contacted through LEGAL of Minnesota, 3722 W.
50 St., #334, Minneapolis, MN 55410.
PUBLICATIONS NOTED: LESBIAN & GAY & RELATED LEGAL ISSUES:
Backer, Larry Cata, Exposing the Perversions of Toleration: The
Decriminalization of Private Sexual Conduct, the Model Penal Code,
and the Oxymoron of Liberal Toleration, 45 Fla. L. Rev. 755
(December 1993).
Boed, Roman, The State of the Right of Asylum in International Law,
5 Duke J. Comp. & Int. L. 1 (Fall 1994).
Bradley, Craig M., The Right Not to Endorse Gay Rights: A Reply to
Sunstein, 70 Indiana L.J. 29 (Winter 1994) (see Sunstein article,
below).
Calhoun, Cheshire, Sexuality Injustice, 9 Notre Dame J. L. Ethics
& Pub. Pol. 241 (1995).
Campion, Mukti Jain, Who's Fit to Be A Parent (Routledge, 1995)
(includes chapter on lesbian and gay parents).
Cohen, Fred, From the Editor: Sex Offender Registration Laws:
Constitutional and Policy Issues, 31 Crim. L. Bulletin 151 (March-
April 1995).
Dry, Murray, Hate Speech and the Constitution, 11 Const. Commentary
501 (Winter 1994-95).
Duncan, Richard F., and Gary L. Young, Homosexual Rights and
Citizen Initiatives: Is Constitutionalism Unconstitutional?, 9
Notre Dame J. L. Ethics & Pub. Pol. 93 (1995) (Duncan's at it
again; see 69 Notre Dame L. Rev. 393 (1994); this one is an
argument about why the Colorado Supreme Court's decision on
Amendment 2 is invalid).
Fajer, Marc A., With All Deliberate Speed? A Reply to Professor
Sunstein, 70 Indiana L.J. 39 (Winter 1994) (see Sunstein article,
below).
Finnis, John M., Law, Morality, and "Sexual Orientation," 9 Notre
Dame J. L. Ethics & Pub. Pol. 11 (1995) (reprint from article by
the same title published at 69 Notre Dame L. Rev. 1049 (1994) with
additional comments in brackets).
Lawrence, Frederick M., The Punishment of Hate: Toward a Normative
Theory of Bias-Motivated Crimes, 93 Mich. L. Rev. 320 (Nov. 1994).
Marcosson, Samuel A., The "Special Rights" Canard in the Debate
Over Lesbian and Gay Civil Rights, 9 Notre Dame J. L. Ethics & Pub.
Pol. 137 (1995).
Marksteiner, Pete, The Ongoing Pornography Debate, 34 Washburn L.J.
49 (Spring 1994).
Mohr, Richard D., The Case for Gay Marriage, 9 Notre Dame J. L.
Ethics & Pub. Pol. 215 (1995).
Moran, Mayo, Talking About Hate Speech: A Rhetorical Analysis of
American and Canadian Approaches to the Regulation of Hate Speech,
1994 Wis. L. Rev. 1425.
Nockleby, John T., Hate Speech in Context: The Case of Verbal
Threats, 42 Buffalo L. Rev. 653 (Fall 1994).
Perry, Michael J., The Morality of Homosexual Conduct: A Response
to John Finnis, 9 Notre Dame J. L. Ethics & Pub. Pol. 41 (1995)
(see Finnis, above).
Robinson, John H., Church, State, and Sex, 9 Notre Dame J. L.
Ethics & Pub. Pol. 1 (1995) (Forward to symposium issue).
Samuels, M. Dee, You Don't Have to Be Married to Be Legal, 12
Compleat Lawyer No. 1, 46 (Winter 1995).
Shuman-Moore, Elizabeth, Darren B. Watts, and Michele M. Giffels,
Bias Violence: Advocating for Victims, 28 Clearinghouse Rev. 1228
(March 1995).
Siegel, Paul, Second Hand Prejudice, Racial Analogies and Shared
Showers: Why "Don't Ask, Don't Tell" Won't Sell, 9 Notre Dame J. L.
Ethics & Pub. Pol. 185 (1995).
Sunstein, Cass R., Homosexuality and the Constitution, 70 Indiana
L.J. 1 (Winter 1994) (provocative speech, accompanied by responses
from Craig M. Bradley and Marc A. Fajer [listed separately]).
Tax, Meredith, Banned by the Religious Right: My Censorship -- And
Ours, The Nation, March 20, 1995, p. 374 (about the right-wing
crusade against homosexuality in Fairfax County, Virginia).
Weithman, Paul J., A Propos of Professor Perry: A Plea for
Philosophy in Sexual Ethics, 9 Notre Dame J. L. Ethics & Pub. Pol.
75 (1995) (see Perry, Finnis, above).
Book Reviews:
Bamforth, Nicholas, Sexuality and Law in the New Europe (review
article), 58 Modern L. Rev. (UK) 109 (Jan. 1995).
MacKinnon, Catharine A., Pornography Left and Right, 30 Harv. Civ.
Rts.-Civ. Lib. L. Rev. 143 (Winter 1995) (review essay on Posner,
Sex and Reason, and de Grazia, Girls Lean Back Everywhere: The Law
of Obscenity and the Assault on Genius).
Wiener, Scott D., Review of Created Equal: Why Gay Rights Matter to
America, by Michael Nava and Robert Dawidoff, 30 Harv. Civ. Rts.-
Civ. Lib. L. Rev. 267 (Winter 1995).
Student Notes & Comments:
Bernstein, Bobbi, Power, Prejudice, and the Right to Speak:
Litigating "Outness" Under the Equal Protection Clause, 47 Stanford
L. Rev. 269 (Jan. 1995) (interesting use of 1st amendment theory in
support of constitutional gay rights claims).
Cullers, Michael A., Limits on Speech and Mental Slavery: A
Thirteenth Amendment Defense Against Speech Codes, 45 Case Western
Res. L. Rev. 641 (Winter 1995).
Garfield, Daniel J., Don't Box Me In: The Unconstitutionality of
Amendment 2 and English-Only Amendments, 89 Northwestern U. L. Rev.
690 (Winter 1995).
Gutterman, Melvin, The Contours of Eighth Amendment Prison
Jurisprudence: Conditions of Confinement, 48 SMU L. Rev. 373 (Jan-
Feb. 1995).
Harrison, Kendall W., Alexander v. United States: RICO Forfeitures,
Pornography, and the Obscenity Doctrine, 1994 Wis. L. Rev. 1549.
Henes, Brian F., The Origin and Consequences of Recognizing
Homosexuals as a "Particular Social Group" for Refugee Purposes, 8
Temple Int'l & Comp. L.J. 377 (Fall 1994).
Keane, Thomas M., Aloha, Marriage? Constitutional and Choice of Law
Arguments for Recognition of Same-Sex Marriages, 47 Stanford L.
Rev. 499 (Feb. 1995).
Kibelstis, Teresa Eileen, Preventing Violence Against Gay Men and
Lesbians: Should Enhanced Penalties at Sentencing Extend to Bias
Crimes Based on Victims' Sexual Orientation?, 9 Notre Dame J. L.
Ethics & Pub. Pol. 309 (1995).
McConaghy, Jeanine Perella, Constitutional Law -- Hawaii Subjects
Sex-Based Classifications to Strict Scrutiny Analysis -- Baehr v.
Lewin, 28 Suffolk U. L. Rev. 164 (Spring 1994).
Meister, Julia Blanche, Orientation-Based Persecution as Grounds
for Refugee Status: Policy Implications and Recommendations, 9
Notre Dame J. L. Ethics & Pub. Pol. 275 (1995).
Pacillo, Edith L., Getting a Feminist Foot in the Courtroom Door:
Media Liability for Personal Injury Caused by Pornography, 28
Suffolk U. L. Rev. 123 (Spring 1994).
Scallan, C. Catherine, Cross-Burning is Not a Threat:
Constitutional Protection for Hate Speech, 14 Miss. Coll. L. Rev.
631 (Spring 1994).
Swart, Jeffrey J., The Wedding Luau -- Who is Invited? Hawaii,
Same-Sex Marriage, and Emerging Realities, 43 Emory L.J. 1577 (Fall
1994).
Wright, Angelyn M., Indecent Exposure on the Information
Superhighway: Regulating Pornography on Integrated Broadband
Telecommunications Networks, 11 Ga. State U. L. Rev. 465 (Feb.
1995).
Specially Noted:
New York University Press has published an anthology titled
Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and
Civil Liberties, which includes contributions from a variety of
scholars and activists, including former ACLU Lesbian & Gay Rights
Project director Bill Rubenstein.
Symposia:
Symposium on Sexual Orientation, 9 Notre Dame J. L. Ethics & Pub.
Pol. No. 1 (1995)(individual articles noted above).
Gender Issues and the Criminal Law, 85 J. of Crim. L. & Criminology
No. 1 (Summer 1994).
The Sex Panic: Women, Censorship and "Pornography,", 38 N.Y.L.S. L.
Rev. Nos. 1-4 (1993) (symposium speeches, articles and book
reviews; individual articles not noted above).
PUBLICATIONS NOTED: AIDS & RELATED LEGAL ISSUES:
Bathen, Sigrid, The Needles and the Damage Done, 15 Calif. Lawyer
No. 3, 21 (March 1995) (report on the status of needle exchange
programs in several California cities).
Cooper, Richard M., Unapproved Uses of Drugs: An Analysis and Some
Proposals, 49 Food & Drug L.J. 533 (1994).
Gabel, Jody B., Release from Terminal Suffering? The Impact of
AIDS on Medically Assisted Suicide Legislation, 22 Fla. State U. L.
Rev. 369 (Fall 1994).
Haffner, Marlene E., Orphan Products -- Ten Years Later and Then
Some, 49 Food & Drug L.J. 593 (1994).
Marcossan, Samuel A., Who Is "Us" and Who Is "Them" -- Common
Threads and the Discriminatory Cut-Off of Health Care Benefits for
AIDS Under ERISA and the Americans With Disabilities Act, 44 Am. U.
L. Rev. 361 (December 1994).
Mello, Jeffrey A., Limitations of the Americans With Disabilities
Act in Protecting Individuals With HIV from Employment
Discrimination, 19 Seton Hall Legis. J. 73 (1994).
Mook, Jonathan R., Expanding ADA Coverage to Employee Benefit
Plans: Recent Judicial and Administrative Developments, 20 Emp.
Rel. L. J. 571 (Spring 1995).
Rothenberg, Karen H., and Elizabeth C. Lovoy, Something Old,
Something New: The Challenge of Tuberculosis Control in the Age of
AIDS, 42 Buffalo L. Rev. 715 (Fall 1994).
Silin, Jonathan G., Sex, Death, and the Education of Children: Our
Passion for Ignorance in the Age of AIDS (Teachers College Press
[Columbia University], 1995) (Phone orders to 1-800-575-6566 -
$18.95 paperback).
Sudbeck, Lynn E., Students with AIDS: Protecting an Infected
Child's Right to a Classroom Education and Developing a School's
AIDS Policy, 40 S. Dak. L. Rev. 72 (1994-95).
Student Notes & Comments:
Chejfec, Charles, Disclosure of an Adoptee's HIV Status: A Return
to Orphanages and Leper Colonies?, 13 John Marshall J. Computer &
Inf. L. 343 (Winter 1995).
Giovingo, Wendy Elaine Williams, Bradley v. University of Texas
M.D. Anderson Cancer Center -- HIV and the Rehabilitation Act in
the Surgical Setting, 40 Loyola L. Rev. 379 (Summer 1994).
Villalba, Amalia Magdalena, Defining "Disability" Under the
Americans With Disabilities Act, 22 U. Balt. L. Rev. 357 (Spring
1993).
Book Reviews:
Fernandez, Damian J., Sexual Politics in Cuba: Machismo,
Homosexuality, and AIDS by Marvin Leiner, 20 J. Health Politics,
Policy & L. 233 (Spring 1995).
Levine, Carol, AIDS Prevention and Services: Community-Based
Research, edited by Johannes P. Van Vugt, 20 J. Health Politics,
Policy & L. 230 (Spring 1995).
Symposia:
Trends in Health Care Decisionmaking, 53 Maryland L. Rev. No. 4
(1994).
Specially Noted:
The Association of the Bar of the City of New York has published
the 10th update of AIDS: A Selective Bibliography of Legal, Social
and Medical Aspects, 50 Record of the Association of the Bar of the
City of New York 124 (Jan-Feb 1995).
Editor's Note:
All points of view expressed in Lesbian/Gay Law Notes are those of
identified writers, and are not official positions of the Lesbian
and Gay Law Association of Greater New York. All comments in
Publications Noted are attributable to the Editor. Correspondence
pertinent to issues covered in Law Notes is welcome and will be
published subject to editing.